            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                                 MAY 1997 SESSION



ROBERT D. JEFFERSON,              *      C.C.A. # 02C01-9608-CR-00257

             Appellant,           *      SHELBY COUNTY

VS.                               *      Hon. John P. Colton, Jr., Judge

STATE OF TENNESSEE,               *      (Post-Conviction)

             Appellee.            *
                                                               FILED
                                                                  July 8, 1997

For Appellant:                           For Appellee:         Cecil Crowson, Jr.
                                                               Appellate C ourt Clerk

Robert D. Jefferson                      Charles W. Burson
Pro Se                                   Attorney General & Reporter
No. 13936-076
Federal Correctional Institute           William David Bridgers
P.O. Box 34550                           Assistant Attorney General
Memphis, TN 38134-0550                   450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         Lee V. Coffee
                                         Asst. District Attorney General
                                         Criminal Justice Center
                                         201 Poplar Avenue, Suite 301
                                         Memphis, TN 38103


OPINION FILED:_____________________



AFFIRMED



PER CURIAM
                                       OPINION



              The petitioner, Robert D. Jefferson, appeals the trial court's denial of

his petition for post-conviction relief. The issue presented for review is whether the

trial court correctly dismissed the petition without an evidentiary hearing on the basis

that it was barred by the statute of limitations. We affirm the judgment of the trial

court.



              This post-conviction petition, filed March 5, 1996, challenges the

validity of seven separate convictions occurring between 1985 and 1990. The

petitioner contends these sentences are being used to enhance an otherwise

unrelated sentence imposed by federal court. He alleges that his guilty pleas were

not knowingly and voluntarily made. The trial court summarily dismissed the petition

as being time-barred.



              In this appeal of right, the petitioner makes several arguments as to

why his petition should not be barred by the statute of limitations. First, he argues

the statute of limitations does not apply because he is in custody of the federal

rather than state government. Our court, however, has previously held there is no

distinction under the post-conviction act between a prisoner in federal custody and

one in state custody. Passarella v. State, 891 S.W.2d 619, 622-23 (Tenn. Crim.

App. 1994). Also, this court has upheld application of the statute of limitations

against a federal prisoner. See William Lynn Johnson v. State, No. 02C01-9605-

CR-00136, slip op. at 8 (Tenn. Crim. App., at Jackson, June 10, 1997). We are

bound by those rulings.



              The petitioner also contends that the application of the statute of


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limitations violates the ex post facto provisions of both the state and federal

constitutions. This court, however, has previously rejected this same argument.

See State v. Richard S. Butler, No. 1338, slip op. at 3 (Tenn. Crim. App., at

Knoxville, May 19, 1992). See also William Lynn Johnson, slip op. at 5.



              Next, the petitioner argues that the new Post-Conviction Procedure Act

creates a one-year window in which any petitioner may file regardless of the time of

the conviction. Effective May 10, 1995, the new Post-Conviction Procedure Act

replaced the prior act in its entirety. See 1995 Tenn. Pub. Act 207, §§ 1 and 3.

Because this petition was filed in March of 1996, the new act applies. The most

recent legislation replaced a three-year with a one-year limitation:

              (a) ...[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....

              (b) No court shall have jurisdiction to consider a petition
              filed after such time 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.
              Such petition must be filed within one (1) year of the
              ruling of the highest state appellate court or the United
              States [S]upreme [C]ourt establishing a constitutional
              right that was not recognized as existing at the time of
              trial;

                      (2) The claim in the petition is based upon new
              scientific evidence establishing that such 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 such conviction in the case in
              which the claim is asserted was not a guilty plea with an

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              agreed sentence, and the previous conviction has
              subsequently been held to be invalid, in which case the
              petition must be filed within one (1) year of the finality of
              the ruling holding the previous conviction to be invalid.

Tenn. Code Ann. § 40-30-202 (Supp. 1996).



              Because the convictions in this case became final in years ranging

from 1985 to 1990, this petition appears to have been barred not only by the current

one-year statute of limitations but also the former three-year statute. Moreover, the

grounds raised in the petition and on appeal do not appear to fall within any of the

exceptions set out in Tenn. Code Ann. § 40-30-202(b)(1), (2), or (3) (Supp. 1996).



              In Arnold Carter v. State, No. 03C01-9509-CC-00270 (Tenn. Crim.

App., at Knoxville, July 11, 1996), appeal granted, (Tenn., Dec. 2, 1996), a panel of

this court, by a two-to-one margin, ruled that the literal terms of the new statute

created a one-year window, starting on May 10, 1995, during which post-conviction

petitions may be filed, notwithstanding the date of the judgment:

              This act shall take effect upon becoming a law, the public
              welfare requiring it and shall govern all petitions for post-
              conviction relief filed after this date, and any motions
              which may be filed after this date to reopen petitions for
              post-conviction relief which were concluded prior to the
              effective date of this act. Notwithstanding any other
              provision of this act to the contrary, any person having a
              ground for relief recognized under this act shall have at
              least one (1) year from the effective date of this act to file
              a petition or a motion to reopen under this act.

1995 Tenn. Pub. Act 207, § 3 (emphasis added).




              This majority found no ambiguities in the terminology of the statute

despite the reasonable argument by the dissent to the contrary. In Carter, our

supreme court granted the state's application for permission to appeal. While no


                                            4
decision has yet been filed, other panels of this court have adopted the dissenting

view in Carter and have held that the new act did not create a new one-year filing

period. See, e.g., Ronald Albert Brummitt v. State, No. 03C01-9512-CC-00415

(Tenn. Crim. App., at Knoxville, Mar. 11, 1997); Jimmy Earl Lofton v. State, No.

02C01-9603-CR-00073 (Tenn. Crim. App., at Jackson, Mar. 7, 1997); Roy Barnett v.

State, No. 03C01-9512-CV-00394 (Tenn. Crim. App., at Knoxville, Feb. 20, 1997);

Stephen Koprowski v. State, No. 03C01-9511-CC-00365 (Tenn. Crim. App., at

Knoxville, Jan. 28, 1997); Johnny L. Butler v. State, No. 02C01-9509-CR-00289

(Tenn. Crim. App., at Jackson, Dec. 2, 1996). A majority of this panel now adheres

to the holding in these subsequent cases. Thus, treating the petition as one for

post-conviction relief, this claim is barred by the statute of limitations under the new

Act.



              The petitioner next argues that the statute of limitations does not apply

to guilty proceedings unless an action is filed in the highest state appellate court.

Our court has routinely held that the statute of limitations on guilty pleas

commences "when the judgment of conviction [is] entered." Sharon Ann Conner v.

State, No. 03C01-9509-CC-00279, slip op. at 2 (Tenn. Crim. App., at Knoxville, June

3, 1996). See also William Lynn Johnson, slip op. at 9.



              The petitioner also argues that he should be excused from complying

with the statute of limitations because federal prisons do not supply prisoners with

copies of Tenn. Code Ann. Our court has held "ignorance of the existence of the

statute of limitations ... does not toll the running of the statute of limitations." State

v. Phillips, 904 S.W.2d 123, 124 (Tenn. Crim. App. 1995). The petitioner also

asserts that the federal system's failure to supply copies of the Code amounts to

state action which has caused him not to present his claim sooner. He argues he is


                                             5
entitled to the benefit of Tenn. Code Ann. § 40-30-206(g) (2) (Supp. 1996):

              A ground for relief is waived if the petitioner personally or
              through an attorney failed to present it for determination
              in any proceeding before a court of competent
              jurisdiction in which the ground could have been
              presented unless: the failure to present the ground was
              the result of state action in violation of the federal or state
              constitution.



              Initially, we note that the above-quoted portion creates a limited

exception to the waiver doctrine and has no effect on the application of the statute

of limitations. Moreover, our court has recently rejected this very argument. William

Lynn Johnson, slip op. at 6-7.



              The petitioner also argues he is entitled to relief under the principles

announced in State v. Frazier, 784 S.W.2d 927 (Tenn. 1990); State v. Newsome,

778 S.W.2d 34 (Tenn. 1989); and State v. McClintock, 732 S.W.2d 268 (Tenn.

1987). Frazier held that Boykin was not to be applied retrospectively and that

Mackey violations that exceeded the mandates of Boykin are not subject to review

during a post-conviction proceeding. Frazier, 784 S.W.2d at 928. Newsome held

that the harmless error rule applies to Mackey violations. Newsome, 778 S.W.2d at

38. Accordingly, neither Frazier nor Newsome created a new constitutional right to

be applied retroactively. We also note that the plain language of the McClintock

opinion holds that it only applies to litigants already in the "pipeline." McClintock,

732 S.W.2d at 274. None of these cases afford the petitioner any relief.



              The appellant also argues that the application of the statute of

limitations to his case denies him due process of law and that the post-conviction

court erred when it did not find an exception to the statute of limitations in his case.

In Burford v. State, 845 S.W.2d 204 (Tenn.1992), our supreme court carved out a


                                            6
narrow exception to the then three-year statute of limitations. Burford had been

sentenced as a habitual criminal to a term of life imprisonment based upon five prior

robbery convictions. Id. at 205. He filed a timely post-conviction petition, alleging

that certain of his five prior robbery convictions were constitutionally infirm because

he had not been advised of his right against self-incrimination before entering his

plea; he was granted post-conviction relief from these convictions. Id. Later, after

the three-year statute of limitations had expired, Burford filed a petition to set aside

the finding of habitual criminality on the basis that there was no longer a sufficient

number of prior felony convictions to qualify him for the enhanced punishment. Id.

at 206. Our supreme court ruled that the statute of limitations, while generally

compliant with constitutional due process, violated Burford's specific due process

rights:

              If consideration of the petition is barred, Burford will be
              forced to serve a persistent offender sentence that was
              enhanced by previous convictions that no longer stand.
              As a result, Burford will be forced to serve an excessive
              sentence in violation of his rights under the Eighth
              Amendment to the U.S. Constitution, and Article I, § 16
              of the Tennessee Constitution, which, by definition, are
              fundamental rights entitled to heightened protection.

Id. at 209.



              In Sands v. State, 903 S.W.2d 297 (Tenn.1995), our supreme court

further defined how to apply the Burford test. A court must:

              (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. In making this final determination, courts
              should carefully weigh the petitioner's liberty interest in
              "collaterally attacking constitutional violations occurring
              during the conviction process," against the State's
              interest in preventing the litigation of "stale and
              fraudulent claims."

                                            7
Sands, 903 S.W.2d at 301 (citations omitted) (quoting Burford, 845 S.W.2d at 207,

208).



                    By the use of these guidelines, we have first determined that the

statute of limitations for this petitioner's convictions expired in the years between

19891 and 1993. The petitioner's argument fails at the second step. He argues his

pleas were involuntary. The right to the voluntariness of a guilty plea was

established well before petitioner's judgments were entered. See, e.g., Boykin v.

Alabama, 395 U.S. 238 (1969). Thus, he has not established that a new

constitutional right arose after his convictions became final or after his statute of

limitations expired. To the extent the petitioner argues his pleas are invalid because

he was not advised that the conviction could be used to enhance a subsequent

punishment, that portion of the advice litany is not constitutionally required. Our

supreme court has ruled that the "advice [that the conviction may be used to

enhance a future sentence] ... is not based upon any constitutional provision, federal

or state... [and] such omissions have no validity on the ... post-conviction

proceeding." State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).




        1
            Th e thre e-year statu te of lim itations was pas sed in 198 6.

                                                          8
We therefore affirm the judgment of the trial court.

                            PER CURIAM

                            Joe B. Jones, Presiding Judge
                            Gary R. Wade, Judge
                            John H. Peay, Judge




                             9
