               IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                        AT JACKSON



ROBERT LEE RAYFORD,                         )
                                            )
       Petitioner,                          ) C. C. A. NO. 02C01-9702-CR-00079
                                            )
vs.

STATE OF TENNESSEE,
                                            ) SHELBY COUNTY
                                            )
                                            ) No. P-04756
                                                                         FILED
                                            )
                                                                      July 1, 1997
       Respondent.                          )
                                                                         Cecil Crowson, Jr.
                                                                         Appellate C ourt Clerk

                                          ORDER



              This matter is before the Court upon the state’s motion, pursuant to Rule

20, Rules of the Court of Criminal Appeals, to affirm the judgment of the trial court

through an order rather than a formal opinion. The record in this case was filed on

February 26, 1997, and the petitioner filed his brief on April 11, 1997. In 1986, this

Court affirmed the petitioner’s convictions for aggravated rape and status as a habitual

criminal. State v. Rayford, No. 38 (Tenn. Crim. App., at Jackson, April 2, 1986). The

Supreme Court denied the petitioner’s application for permission to appeal. In June of

1987, the petitioner filed a petition for post-conviction relief, claiming, in part, ineffective

assistance of counsel. The trial court finally dismissed the petition in May 1991, but the

petitioner did not appeal that dismissal.



              During the pendency of his petition in the trial court, the petitioner filed a

petition for writ of habeas corpus in the federal court, in which he raised the same

issues he claimed in his state post-conviction petition. After several hearings in the

district court, the petitioner was ultimately denied relief in December, 1995. The federal

appeals court denied a certificate of probable cause in April, 1996, and the United

States Supreme Court denied the petitioner’s writ of certiorari in October, 1996.



              On December 11, 1996, the petitioner filed his second petition for post-

conviction relief in the trial court. The trial court dismissed the petition on January 13,
1997, stating that the petition was barred by the statute of limitation and that the issues

raised had been previously determined. On appeal, the petitioner, citing Sands v.

State, 903 S.W.2d 297 (Tenn. 1995), argues that the strict application of the statute of

limitation in this case would deny him due process of law. Specifically, the petitioner

contends that he could not have filed his post-conviction petition any earlier because

the United States Supreme Court did not rule upon his petition for writ of certiorari until

October 1996. According to the petitioner, state law prevented him from filing two suits

simultaneously in two different courts.



              T.C.A. § 40-30-206(c), upon which the petitioner relies to support his

claim on appeal, provides that the trial judge may summarily dismiss a petition if it

appears the petitioner already has pending a petition in “either the trial court, court of

criminal appeals, or supreme court.” Contrary to the petitioner’s claim, the post-

conviction statute does not address pleadings filed in the federal courts. Indeed, the

statute specifically only imposes limits on simultaneous state court filings. T.C.A. § 40-

30-202(c) “contemplates the filing of only one (1) petition for post-conviction relief [and]

[i]n no event may more than one (1) petition for post-conviction relief be filed attacking a

single judgment.” Moreover, T.C.A. § 40-30-202(a) (emphasis added) mandates that

       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 has been
       taken or, if no appeal is taken, within one (1) year of the date on which the
       judgment became final.

This time limit, however, is not tolled by federal proceedings. See § T.C.A. 40-30-

202(b)(1)-(3). In fact, nothing in the language of this statute prevents the petitioner

from filing a petition in the state court when he or she has a federal habeas corpus

petition pending. See T.C.A. §§ 40-30-201-222.



              The petitioner already filed one petition for post-conviction relief, which

was dismissed in 1991. The petitioner never appealed that dismissal. In addition, more

than one year has passed since that dismissal by the trial court and, also, since the

final action of the highest state appellate court regarding the petitioner’s conviction.



                                             2
Accordingly, the present petition was filed outside the statute of limitation, and the trial

court was therefore without jurisdiction to consider the petition. See T.C.A. § 40-30-

202.



              Having reviewed the state’s motion in light of the petitioner’s response

and the entire record on appeal, we find that the motion is well-taken and should

therefore be granted. Accordingly, for the reasons stated above, it is hereby

ORDERED that the judgment of the trial court dismissing the petition without the

necessity of an evidentiary hearing is affirmed.



              Enter, this the ___ day of June, 1997.




                                                   ______________________________
                                                   DAVID G. HAYES, JUDGE




                                                   ______________________________
                                                   JOE B. JONES, PRESIDING JUDGE




                                                   ______________________________
                                                   JOE G. RILEY, JUDGE




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