         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON

                        MARCH 1997 SESSION
                                                FILED
                                                  June 09, 1997

                                                Cecil Crowson, Jr.
FREDDIE LEE MANS,                )              Appellate C ourt Clerk
                                 )
           Appellant,            )    C.C.A. No. 02C01-9605-CR-00147
                                 )
vs.                              )    Shelby County
                                 )
STATE OF TENNESSEE,              )    Hon.   W.    Fred Axley, Judge
                                 )
           Appellee.             )    (Post-Conviction)
                                 )



FOR THE APPELLANT:                    FOR THE APPELLEE:

FREDDIE LEE MANS                      JOHN KNOX WALKUP
Pro Se                                Attorney General & Reporter
F.C.I. Memphis
P.O. Box 34550 (Tennessee)
Memphis, TN 38184-0550                SARAH M. BRANCH
                                      Assistant Attorney General
                                      Criminal Justice Division
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      JOHN W. PIEROTTI
                                      District Attorney General

                                      C. ALANDA HORNE
                                      Asst. District Attorney General
                                      Third Floor
                                      Criminal Justice Complex
                                      201 Poplar
                                      Memphis, TN 38103

OPINION FILED: ____________________



AFFIRMED AS MODIFIED


CURWOOD WITT
JUDGE
                                       OPINION

              The petitioner, Freddie Lee Mans, appeals the Shelby County Criminal

Court's summary dismissal of his post-conviction petition. The appellant is currently

incarcerated for a conviction received in federal court, and he contends his federal

sentence was enhanced in part based upon unconstitutional prior convictions in the

state courts of Tennessee. His post-conviction petition challenges those prior

Tennessee convictions. Upon review of the record, we affirm the judgment of the

court below, although we do so on different grounds.



              The petitioner is presently serving a 240-month sentence in the

Federal Correctional Institution in Memphis for a narcotics conviction he received

in the Federal District Court for the Western District of Tennessee. He has a

lengthy history in the State of Tennessee's criminal justice system. It is relevant for

purposes of this appeal that his federal presentence report reflects 15 prior

convictions in the courts of the State of Tennessee. The length of the petitioner's

federal sentence was enhanced, in part, due to the prior Tennessee convictions.1

In his post-conviction petition filed on March 5, 1996 in the Criminal Court of Shelby

County, he attacks the constitutionality of the enhancing Tennessee convictions,

alleging he was not advised prior to his guilty pleas (which apparently formed the

predicate for his Tennessee convictions) of his right against self-incrimination and

that these convictions might be used to enhance his sentence for any subsequent

conviction.2 The court below found without a hearing that the petitioner's claim was


       1
        According to the federal presentence report in the record, not all of the
petitioner's Tennessee convictions were assigned "points" under the federal
sentencing guidelines.
       2
         Only a violation of the United States or Tennessee constitutions is a proper
basis for post-conviction relief. Housler v. State, 749 S.W.2d 758, 761 (Tenn. Crim.
App. 1988). In Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), the
Supreme Court held that the Constitution requires that defendants be advised prior
to the acceptance of guilty pleas of their constitutional rights, including the right not
to give self-incriminating statements. Tennessee has expanded on the Boykin litany
to be given to defendants in this state. See State v. McClintock, 732 S.W.2d 268
(Tenn. 1984); Mackey v. State, 553 S.W.2d 337 (Tenn. 1977). In McClintock, the
barred by the statute of limitations. 3 The petitioner is before us in his appeal of that

decision.



              The petitioner's post-conviction petition challenges fifteen convictions

received between May 31, 1977 and December 8, 1989. Ostensibly, the 1995 Post-

Conviction Procedure Act is applicable to all claims filed after May 10, 1995. See

generally Tenn. Code Ann. §§ 40-30-201 through -222 (Supp. 1996). That

legislation provides that an individual must file for post-conviction relief "within one

(1) year of the date on which the judgment became final, or consideration of such

petition shall be barred." Tenn. Code Ann. § 40-30-202(a) (Supp. 1996). The Act

also provides, "notwithstanding any other provision of this part to the contrary, any

person having ground for relief recognized under this part shall have at least one

(1) year from May 10, 1995, to file a petition or a motion to reopen a petition under

this part." Tenn. Code Ann. § 40-30-201, Compiler's Notes (Supp. 1996).



              Prior to the enactment of the 1995 Post-Conviction Procedure Act,

post-conviction petitions had to be filed within (a) three years of the date of the final




supreme court said a defendant has the right to be informed of the enhancement
possibilities of his or her plea to a Tennessee offense. The absence of the
additional McClintock admonishment, however, does not affect the constitutionality
of the plea under Boykin. Blankenship v. State, 858 S.W.2d 897, 905 (Tenn. 1993).
Therefore, the only potentially viable issue in this post-conviction proceeding is the
alleged absence of the admonishment the appellant was privileged not to give
incriminatory statements against himself.
       3
        The post-conviction court was unable to determine which convictions were
challenged, and it relied upon two convictions the appellant received on October 1,
1992 in dismissing the appellant's claim as time-barred. The petitioner listed 15
convictions in his petition relating to offenses occurring in or before 1989.
According to the federal presentence report, the dates of the convictions for those
offenses are May 31, 1977, October 21, 1977, January 24, 1978, August 4, 1982,
December 28, 1984, March 2, 1985, November 18, 1985 and December 8, 1989.
(Multiple convictions were rendered on many of these dates). We interpret the
petition to challenge the fifteen prior convictions, not the two subsequent
convictions. In his reply brief, the appellant ambiguously invites this court to
consider the two subsequent convictions, as well.

                                           3
action of the highest state appellate court to which an appeal was taken, or (b) three

years from July 1, 1986, the effective date of the statute. Tenn. Code Ann. § 40-30-

102 (1990) (repealed 1995); State v. Mullins, 767 S.W.2d 668, 669 (Tenn. Crim.

App. 1988). An exception applied, however, to preserve the right of a post-

conviction petitioner to mount an otherwise untimely challenge where strict

application of the statute of limitations would deprive the petitioner of due process

of law. Burford v. State, 845 S.W.2d 204 (Tenn. 1992).



              The petitioner makes several alternative arguments why he should not

be barred by the three year statute of limitations and why his claim is within the one

year statute of limitations.



              First, he contends his petition should not have been dismissed as

untimely because some of the Tennessee offenses were committed prior to the

enactment of the three year statute of limitations, and application of that statute of

limitations is an ex post facto infringement of his constitutional rights. We disagree.

This court has addressed this issue on several occasions and found no ex post

facto violation in limiting the period of time within which a post-conviction challenge

may be made even though the conviction predates the enactment of the statute of

limitations. See, e.g., State v. Richard S. Butler, No. 1338 (Tenn. Crim. App.,

Knoxville, May 19, 1992); Bobby Silas Robinson v. State, No. 87-69-III (Tenn. Crim.

App., Nashville, Jan. 6, 1988).



              Alternatively, the petitioner argues Burford provides an exception to

the three year statute of limitations which allows him to institute a proceeding to

attack his Tennessee convictions, notwithstanding the three year limitation. Again,

we disagree. Burford was a unique case in which the petitioner was caught in a

procedural trap in which he first had to successfully challenge convictions in a post-

                                          4
conviction proceeding in one county in order to have a justiciable claim for relief in

post-conviction proceedings in another county. Burford, 845 S.W.2d at 208. He

was caught in a quandary because the approach of the statute of limitations

applicable to the latter claim was looming prior to a determination of the former

claim. Burford, 845 S.W.2d at 208. The supreme court found the application of the

statute of limitations to the latter claim violative of due process in that limited

circumstance and allowed the Burford petitioner to maintain his claim

notwithstanding the statute of limitations. See Burford, 845 S.W.2d at 209-10.

Burford did not, however, give post-conviction petitioners the right to wage collateral

attack on stale convictions themselves outside the statute of limitations. To be sure,

the petitioner in Burford filed his attack on his enhancing convictions within the time

then allowed under the Act. See generally Burford, 845 S.W.2d 204. Unlike

Burford, the petitioner herein seeks to challenge not his enhanced federal sentence,

over which this court has no jurisdiction, but his enhancing Tennessee convictions.

In this situation, the Burford exception is inapplicable.



              In the next alternative, the petitioner argues his claims should not be

barred by the three year statute of limitations which otherwise barred his claims on

July 3, 19894 as to all of his convictions received on or before July 1, 1986, and

three years from the date of conviction on all convictions received after July 1, 1986

through May 9, 1995,5 because the federal facility in which he is incarcerated does

not have Tennessee Code Annotated available for use by prisoners. 6 Although it

       4
        As previously noted by this court, July 1, 1989 was a Saturday; therefore,
post-conviction claims existing prior to the July 1, 1986 effective date of the three-
year statute of limitations were barred if not filed the following Monday, July 3, 1989.
Stephen L. Carey v. State, No. 03C01-9309-CR-00330 (Tenn. Crim. App., Knoxville,
Nov. 8, 1994), perm. app. denied (Tenn. 1995).
       5
        As noted above, the one-year statute of limitations for post-conviction claims
took effect on May 10, 1995.
       6
       The appellant mistakenly seeks to avail himself of the benefit of Code
section 40-3-206(g)(2), which provides that a claim is not waived if the failure to

                                           5
is not entirely clear, it appears from the record that the appellant has been in federal

custody since July 28, 1990. The record does not reflect whether all of this

detention and incarceration has been at the Federal Correctional Institute in

Memphis, where the appellant alleges he does not have access to Tennessee law

materials. We are not persuaded by the petitioner's argument. These facts do not

fit within any of the exceptions for untimely filing under Code section 40-30-202(b).




              We note parenthetically that the petitioner makes no allegation with

respect to his access to legal materials from the dates of his guilty pleas for the prior

Tennessee offenses, until July 28, 1990, the date he came into federal custody.

See Sands v. State, 903 S.W .2d 297 (Tenn. 1995) (petitioner who did not have

access to law library while incarcerated in Florida failed to show he did not have an

opportunity to present his claim where it was not based on "later arising ground");

Paul R. Spence v. State, No. 968 (Tenn. Crim. App., Knoxville, Nov. 3, 1991), perm.

app. denied (Tenn. 1992) (petitioner incarcerated in another state who did not have

access to Tennessee legal materials not entitled to file untimely post-conviction

petition). Moreover, he makes no explanation of his failure for periods of up to 18

years to pursue post-conviction relief. Cf. Thomas L. Mills v. State, No. 03C01-

9505-CR-00137 (Tenn. Crim. App., Knoxville, Jan. 31, 1996) (petitioner who

claimed ignorance of post-conviction statute of limitations not entitled to file untimely

claim). Accordingly, we fail to find merit in this argument.



              The petitioner also urges the court that his claims are not barred




present it was the result of state action in violation of the state or federal
constitution. This provision is applicable to a claim that otherwise has been waived
by failure to present it in earlier proceedings, i.e. on direct appeal or in a prior post-
conviction proceeding, not a claim which his barred by the statute of limitations.
See Tenn. Code Ann. § 40-30-206(g) (Supp. 1996).

                                            6
because State v. Newsome, 778 S.W.2d 34 (Tenn. 1989) and State v. Frazier, 784

S.W.2d 927 (Tenn. 1990) clarified relevant existing law, and his statute of limitations

should be computed from the dates of release of those opinions. This argument is

without merit. These cases announced no new constitutional rights which required

retrospective application. Moreover, the petition was filed six and five years,

respectively, after these decisions. Even under the old act, this filing was outside

the statute of limitations.



               The petitioner's next argument is that the statute of limitations cannot

apply to him because he is a federal prisoner. This contention is without merit.

Passarella v. State, 891 S.W.2d 619, 622-23 (Tenn. Crim. App. 1994); accord

Phillip Woody v. State, No. 03C01-92-11-CR-00396 (Tenn. Crim. App., Knoxville,

July 29, 1993) (statute of limitations barred federal prisoner's challenge to

Tennessee convictions used to enhance federal sentence).



               The petitioner next posits that even if his claim is barred by the former

three year statute of limitations, the 1995 Post-Conviction Procedure Act revives his

right to file a post-conviction petition within one year of that statute's effective date.

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

July 11, 1996), perm. app. granted (Tenn. Dec. 12, 1996), this court held that the

new Act provided such a window in which any petitioner could seek post-conviction

relief even if that petition had previously been barred by the statute of limitations.

Judge David Welles filed a strong dissenting opinion. The reasoning of that dissent

has formed the basis for every decision since written. See, e.g., Johnny Tillman v.

State, No. 03C01-9512-CR-00413 (Tenn. Crim. App., Knoxville, Feb. 12, 1997),

petition for perm. app. filed (Tenn. Feb. 18, 1997); Doyle Carter v. State, No.

01C01-9511-CC-00398 (Tenn. Crim. App., Nashville, Feb. 12, 1997). The new Act

was not meant to revive previously barred claims.

                                            7
                   Additionally, the petitioner argues that his claim was not restricted by

a statute of limitations prior to the enactment of the 1995 Act because former Code

section 40-30-102 applied only to claims where an appeal was taken to the highest

state appellate court, not where the conviction followed a guilty plea.               This

contention is wholly without merit. This court has routinely found the statute of

limitations on a post-conviction claim arising from a proceeding in which a guilty plea

was entered to commence on the date the judgment of conviction was entered.

See, e.g., Sharon Ann Conner v. State, No. 03C01-9509-CC-00279 (Tenn. Crim.

App., Knoxville, June 3, 1996); Vernon Wayne Mauldin v. State, No. 03C01-9411-

CR-00408 (Tenn. Crim. App., Knoxville, May 25, 1995); perm. app. denied (Tenn.

1995).



                   The appellant has not asserted any grounds for allowing untimely

consideration of his petition under Tennessee Code Annotated section 40-30-

202(b). Thus, the three year statute of limitations applicable to the petitioner's

claims under the old Act expired on December 8, 1992 and July 3, 1989. His claims

are now barred.



                   Finally, in his reply brief, the petitioner has equivocally raised the

constitutionality of his two Tennessee convictions received after his federal

sentencing. 7 Obviously, these convictions were not used to enhance his sentence.

These convictions were not among the 15 listed in the post-conviction petition;


         7
             The relevant portion of the petitioner's reply brief reads

         It must be noted that appellant's October 1, 1992 convictions were not
         used by the federal government to enhance or increase his
         punishment on the federal offense. However, since these conviction
         [sic] may be used upon resentencing after the challenged convictions
         are expunged there [sic] constitutionality should also be consider [sic]
         under the present claims that are not contested herein.

(emphasis in original).

                                               8
however, the court below used them as the basis for dismissing the petition as

outside the statute of limitations. The petitioner candidly admits these convictions

were not challenged in the petition.



              Code section 40-30-206(b) commands that the trial court shall enter

an order summarily dismissing the petition without the appointment of counsel or a

hearing "if it plainly appears from the face of the petition and any annexed exhibits

or the prior proceedings in the case" that the petition was not filed within the statute

of limitations. In this case, it "plainly appears" that the 1992 state convictions were

not challenged in the petition or the contemporaneously filed memorandum of law.

The lower court's inclusion of the 1992 state convictions was misplaced. There was

no basis for enunciating as to these 1992 state convictions. W e agree, however,

with the result ultimately reached by the trial court, although the proper ground for

the trial court's determination is the untimeliness of the petition in challenging the

1977 through 1989 convictions. The judgment of the trial court must be modified

to delete findings and pronouncements relative to the 1992 state court convictions.



              The judgment of the trial court is affirmed, as modified.



                                            _______________________________
                                            CURWOOD WITT, JUDGE


CONCUR:



_________________________________
JOSEPH B. JONES, PRESIDING JUDGE



(NOT PARTICIPATING)
GARY R. WADE, JUDGE




                                           9
