         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT JACKSON

                          MARCH 1997 SESSION
                                                 FILED
                                                   June 10, 1997

WILLIAM LYNN JOHNSON,             )             Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk
                                  )
            Appellant,            )    C.C.A. No. 02C01-9605-CR-00136
                                  )
vs.                               )    Shelby County
                                  )
STATE OF TENNESSEE,               )    Hon. Carolyn Wade Blackett, Judge
                                  )
            Appellee.             )    (Post-Conviction)
                                  )



FOR THE APPELLANT:                     FOR THE APPELLEE:

WILLIAM LYNN JOHNSON                   JOHN KNOX WALKUP
Pro Se                                 Attorney General & Reporter
F.C.I. Memphis
P.O. Box 34550 (Beale Unit)
Memphis, TN 38184-0550                 ELLEN H. POLLACK
                                       Assistant Attorney General
                                       Criminal Justice Division
                                       450 James Robertson Parkway
                                       Nashville, TN 37243-0493

                                       JOHN W. PIEROTTI
                                       District Attorney General

                                       PAUL GOODMAN
                                       Asst. District Attorney General
                                       Third Floor
                                       Criminal Justice Complex
                                       201 Poplar
                                       Memphis, TN 38103


OPINION FILED: ____________________


AFFIRMED


CURWOOD WITT
JUDGE
                                     OPINION

              The petitioner, William Lynn Johnson,1 appeals the Shelby County

Criminal Court's summary dismissal of his post-conviction petition. The petitioner

is currently incarcerated for convictions 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.



              The petitioner is presently serving a sentence of undisclosed length2

in the Federal Correctional Institution in Memphis for his convictions 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 he was convicted of petit larceny in 1971 and 1972 and second degree

murder and carrying a pistol by means of using a firearm in 1979. The latter

sentence was affirmed by this court in 1980. See State v. William Lynn Johnson,

No. 41 (Tenn. Crim. App., Jackson, May 15, 1980), perm. app. denied (Tenn. 1980).

Thereafter, he filed a post-conviction petition as to that conviction, and relief was

denied. The dismissal of his petition was affirmed by this court. State v. William

Lynn Johnson, No. 74 (Tenn. Crim. App., Jackson, Dec. 29, 1983), perm. app.

denied (Tenn. 1984). Thereafter, the petitioner filed a petition for writ of habeas

corpus with the federal district court, and he was awarded a new trial. Johnson v.



       1
        The petitioner styled his name "William Lynn Johnson, Sr." in his petition.
Although we do not have the benefit of the charging instrument, all of the
documents from the underlying conviction which have been included in the record
bear the name "William Lynn Johnson." In accordance with the policy of this court,
we will use the name as it appears in the documents pertaining to the original
conviction.
       2
       The sentencing information contained in the record is not legible; therefore,
we are unaware of the length of the petitioner's sentence.
Dutton, No. 84-2776H (W.D. Tenn. June 13, 1986). This order was subsequently

affirmed by the U.S. Court of Appeals for the Sixth Circuit. Johnson v. Dutton, No.

86-5760 (6th Cir. June 1, 1987). On February 12, 1988, prior to retrial, the

petitioner entered a guilty plea to the offense of murder in the second degree and

received a twelve-year sentence. He was released from prison later that year. On

February 10, 1989, the petitioner was arrested and subsequently charged in a

federal indictment with three counts of possession of cocaine with intent to distribute

and one count of use of a firearm in relation to a drug trafficking offense. The

petitioner thereafter entered guilty pleas on three of the four counts alleged in the

indictment. He is currently serving his sentence for the convictions pursuant to

those guilty pleas at the Federal Correctional Institution in Memphis. The length of

the federal sentence was enhanced, in part, due to the 1971, 1972 and 1988

Tennesee convictions.3 In his post-conviction petition filed on February 28, 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

pleas4 of his right against self-incrimination and that these convictions might be

used to enhance his sentence for any subsequent conviction.5 Following the state's




       3
       According to the federal presentence report in the record, only the 1971 and
1988 convictions were assigned "points" under the federal sentencing guidelines.
       4
        The record does not reflect whether the petitioner pleaded guilty as the basis
for the petit larceny conviction; this is inferred from his petition, which refers to "his
Change of Plea transcripts." This court interprets this to refer to the transcript from
the guilty plea hearing. The record does contain the written waiver signed by the
petitioner in his 1988 guilty plea.
       5
         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 generally Mackey v. State, 553

                                            3
motion to dismiss the petition as untimely, the court below found without a hearing

that the petitioner's claim was barred by the statute of limitations. 6 The petitioner is

before us in his appeal of that decision.



              The petitioner's post-conviction petition was filed on February 28,

1996. 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

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-




S.W.2d 337 (Tenn. 1977). In State v. McClintock, 732 S.W.2d 268 (Tenn. 1987),
the 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, only the alleged absence of the admonishment the
appellant was privileged not to give incriminatory statements against himself is
potentially a proper claim for this court's review.
       6
        Curiously, the lower court also found without elaboration that the petitioner's
claim was previously determined. Because we dispose of the petitioner's claim
based upon the statute of limitations, we have not addressed the propriety of this
finding by the lower court.

                                            4
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 either the one year or three year statutes of limitations.



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

untimely because 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-

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




                                           5
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, 19897 as to the 1971 and 1972 convictions and February 12, 1991 as to the

1988 conviction because the federal facility in which he is incarcerated does not

have Tennessee Code Annotated available for use by prisoners. 8 Although it is not




       7
        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 by 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).
       8
        The appellant mistakenly seeks to avail himself of the benefit of Code
section 40-30-206(g)(2), which provides that a claim is not waived if the failure to
present it was the result of state action in violation of the state or federal
constitution. This provision is applicable to a claim that has been otherwise 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.

                                            6
entirely clear, it appears from the record that the appellant has been in federal

custody since February 10, 1989. 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 February 10, 1989, 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 has offered no explanation for his failure to

pursue post-conviction relief in nearly 25 years. 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

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



 See Tenn. Code Ann. § 40-30-206(g) (Supp. 1996). Nevertheless, as announced
in Burford, the statute of limitations is not a per se bar to untimely claims, and we
consider the substance of the petitioner's argument notwithstanding his citation to
an inapplicable provision of the Code.

                                           7
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.



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

                                            8
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).



              Finally, 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 February 12, 1991 and July 3, 1989. His claim

is now barred.



              We affirm the judgment of the trial court in dismissing this petition.




                                           _______________________________
                                           CURWOOD WITT, JUDGE




                                          9
CONCUR:



_________________________________
JOSEPH B. JONES, PRESIDING JUDGE



(NOT PARTICIPATING)
GARY R. WADE, JUDGE




                              10
