            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                       FILED
                                  AT KNOXVILLE                       August 9, 1999

                                                                    Cecil Crowson, Jr.
                              JUNE 1999 SESSION                    Appellate C ourt
                                                                       Clerk




JOHN WILLIE PARTEE,                   )
                                      )    C.C.A. NO. 03C01-9805-CR-00191
            Appellant,                )
                                      )    KNOX COUNTY
VS.                                   )
                                      )    HON. RAY L. JENKINS,
STATE OF TENNESSEE,                   )    JUDGE
                                      )
            Appellee.                 )    (Petition for Malpractice / Post-
                                           Conviction)



FOR THE APPELLANT:                        FOR THE APPELLEE:


JOHN WILLIE PARTEE, Pro Se                PAUL G. SUMMERS
Turney Center Industrial Prison           Attorney General & Reporter
Route 1
Only, TN 37140-9709                       R. STEPHEN JOBE
                                          Asst. Attorney General
                                          Cordell Hull Bldg., 2nd Fl.
                                          425 Fifth Ave., North
                                          Nashville, TN 37243-0493

                                          RANDALL NICHOLS
                                          District Attorney General
                                          400 Main Ave., Suite 168
                                          City-County Bldg.
                                          Knoxville, TN 37901-1468




OPINION FILED:



AFFIRMED


JOHN H. PEAY,
Judge
                                      OPINION



               In March of 1983, the petitioner was found guilty by a jury of assault with

intent to commit first-degree murder. He was subsequently sentenced to a term of sixty

years to be served in the Tennessee Department of Correction. On direct appeal, this

Court affirmed the petitioner’s conviction. In 1990, the petitioner filed a petition for post-

conviction relief. The trial court found the petition was filed after the applicable statute

of limitations had expired and the petition was dismissed. On appeal, this Court upheld

the dismissal of the petition. On April 16, 1998, the petitioner filed a “Petition for

Malpractice.” This petition was dismissed by the lower court. The petitioner now

appeals. After a review of the record and applicable law, we affirm the judgment of the

lower court.



               The petitioner’s “Petition for Malpractice” alleges that he “has suffered

greatly because [his attorneys] violated his Constitutional Rights.” Specifically, the

petitioner contends that his court-appointed trial attorneys ignored the fact that his

indictment was defective in that it was not signed by the Grand Jury Foreman and it did

not contain the phrase “against the peace and dignity of the state of Tennessee.” The

petitioner further contends that his sentence of sixty years was illegal under the existing

law at the time of his conviction. The petitioner alleges that his due process rights were

violated because the county in which he was indicted “had never had a Black foreman

to [sic] the Grand Jury, nor had there ever been a Black Member on the Panel of the

Grand Jury.” The petitioner claims these facts support the allegation that his attorneys

conspired with the prosecutor’s office to deprive the petitioner “of his Freedom and his

Constitutional Rights to Equal Protection of the Law.”




                                              2
                We note initially that the petition in the case at bar was titled “Petition for

Malpractice.” However, it is not entirely clear whether this petition is actually a petition

for post-conviction relief.       Under the general rule that pleas shall be given the effect

required by their content without regard to the name given them by the pleader, the

petition could be treated as a petition for post-conviction relief. See Brigham v. Lack, 755

S.W.2d 469, 470-71 (Tenn. Crim. App. 1988). According to the petitioner, his “Petition

for Malpractice” was filed pursuant to T.C.A. § 23-3-202, which allows individuals to

initiate disciplinary proceedings against an attorney. The Tennessee Supreme Court has

held that “[a]ny individual aggrieved by the act or conduct of an attorney may avail himself

of [this] statute.” Ex parte Chattanooga Bar Ass’n, 566 S.W.2d 880, 884 (Tenn. 1978).

However, staleness in a charge against an attorney may prevent a claim filed under this

statute from being considered. Tennessee Bar Ass’n v. Berke, 344 S.W.2d 567, 572

(Tenn. App. 1960).1 An unreasonable delay in the prosecution of an attorney could make

it impossible for the attorney to procure witnesses or testimony that would have been

available nearer to the time of the alleged misconduct. Id. In such a case, the doctrine

of laches would justify the dismissal of the petition. Id.



                In the case at bar, the alleged misconduct occurred more than fifteen years

ago. The delay in filing the present action was not the fault of the petitioner’s attorneys.

As such, the trial court did not abuse its discretion in dismissing the petition in reliance

on the doctrine of laches. Id.; see also State v. Gipson, 940 S.W.2d 73, 76 (Tenn. Crim.

App. 1996) (holding that the application of the doctrine of laches will not be reversed

except on a showing of abuse of the trial court’s discretion). In addition, even if the

petition was not barred by the doctrine of laches, the defendant would not be entitled to

relief from his conviction or sentence under T.C.A. § 23-3-202. This statute deals solely


        1
          We note that the statute at issue in the Ex p arte C hatta noo ga B ar As s’n and Berke decisions
was T .C.A. § 29 -309. T his statute is now co dified at T.C .A. § 23-3 -202.

                                                     3
with the issue of disciplinary proceedings for attorneys.



                We next address the petition in the event that it is actually a petition for

post-conviction relief. This Court has previously held that any petitioner whose judgment

became final before July 1, 1986, had only three years thereafter to file a petition for post-

conviction relief. David Cox v. State, No. 03C01-9712-CC-00532, Blount County (Tenn.

Crim. App. filed February 19, 1999, at Knoxville)(citing State v. Masucci, 754 S.W.2d 90

(Tenn. Crim. App. 1988)); T.C.A. § 40-30-102 (repealed 1995). As the petitioner’s

conviction became final in 1984, he had until July 1, 1989, to file a petition for post-

conviction relief. As his petition was not filed until April of 1998, his petition was filed

outside the applicable statute of limitations. 2



                Nevertheless, the petitioner claims that he is entitled to post-conviction relief

under T.C.A. § 40-30-202(b)(1). This section provides that a post-conviction petition may

be filed outside the statute of limitations if 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” and “retrospective application of that right is required.” T.C.A. § 40-30-

202(b)(1). However, such petition must be filed within one year of the court ruling

establishing the new constitutional right. T.C.A. § 40-30-202(b)(1).



                In the case at bar, the “new constitutional rule” relied upon by the petitioner

was set out in Rose v. Mitchell and established that the Equal Protection Clause of the

Fourteenth Amendment “is violated if the key man system of selecting grand jury foremen

is used to systematically exclude blacks.” State v. Jefferson, 769 S.W.2d 875, 876



        2
           Although the petitioner’s petition was filed under the Post-Conviction Procedure Act of 1995,
this Act does not allow “additional time and opportunity for petitioners whose claims are already barred
by the prior statute of limitations.” Carter v. S tate, 952 S.W .2d 417, 420 (Tenn. 1997 ).

                                                    4
(Tenn. Crim. App. 1988)(citing Rose v. Mitchell, 443 U.S. 545 (1979)). However, Rose

v. Mitchell was decided in 1979 and the petitioner’s present petition was not filed until

1998. Therefore, it is not a “new constitutional rule.” As such, his petition does not fall

under an exception to the statute of limitations applicable to post-conviction petitions.

See T.C.A. § 40-30-202(b)(1). Although the petitioner claims that his petition was not

filed earlier because his trial attorneys refused to present the issue and because he did

not know how to prepare or present the issue on his own, these are not recognized

exceptions to the applicable limitations period. See T.C.A. § 40-30-202(b). As such, the

petitioner is not entitled to relief on these grounds.



              In light of the foregoing, the court properly dismissed the petitioner’s

“Petition for Malpractice.”



                                                   ______________________________
                                                   JOHN H. PEAY, Judge



CONCUR:



______________________________
DAVID G. HAYES, Judge



______________________________
JOHN EVERETT W ILLIAMS, Judge




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