         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                  LEWIS A. GRIMES v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                            No. 00-04327 W. Fred Axley, Judge



                     No. W2004-02897-CCA-R3-PC - Filed May 25, 2005




The Petitioner, Lewis A. Grimes, appeals the lower court’s denial of his petition for post-conviction
relief. The State has filed a motion requesting that this Court affirm the trial court pursuant to Rule
20, Rules of the Court of Criminal Appeals. The petition was filed outside the applicable statute of
limitation and is, therefore, time-barred. Accordingly, we affirm the trial court’s dismissal.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN , JJ. joined.

Lewis A. Grimes, pro se.

Paul G. Summers, Attorney General & Reporter; Rachel E. Willis, Assistant Attorney General, for
the appellee, the State of Tennessee.



                                  MEMORANDUM OPINION


       The Petitioner, Lewis A. Grimes, was charged with the offense of felony murder on May 11,
2000. On January 19, 2001, he entered a plea of guilty to the lesser offense of facilitation of felony
murder. Pursuant to the negotiated agreement, the trial court sentenced the Petitioner to twenty years
confinement in the Department of Correction as a range I offender.



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         On October 12, 2004, the Petitioner filed, pro se, a petition for post-conviction relief. As
grounds for relief, he alleged that his plea agreement had been breached by the State. The
Petitioner’s challenge focuses upon the calculation of time served before he was eligible for release.
Petitioner states that, according to his plea agreement, he was to be parole eligible after service of
thirty percent of his sentence, or, between “(54) and (60) months.” He contends that the “[Parole]
Board has systematically promulgated guidelines which . . . supercede the intention of the plea
agreement.” Petitioner states that the “Board has a formula in which they calculate specific factors
and come up with a total amount of months that an offender must serve on a particular sentence
before he is ‘actually’ eligible for parole.” (emphasis in original). Under this formula, Petitioner
states that he was advised that he would have to serve “(87.9) months; not to include the reduction
of any accumulated good time credits;” before reaching parole eligibility. Accordingly, he argues
that the Parole Board’s calculation of his release eligibility violates the spirit of his plea agreement.
By order entered October 29, 2004, the trial court summarily dismissed the petition as barred by the
applicable statute of limitations. Petitioner timely filed a notice of appeal document.

         Petitioner’s conviction became final on February 18, 2001. Thus, under the applicable statute
of limitations, Petitioner had until February 18, 2002, to file a petition for post-conviction relief. See
Tenn. Code Ann. § 40-30-102 (2003 Repl.). On appeal to this Court, the Petitioner asserts that the
statute of limitations should be tolled under Burford v. State. The State has filed a motion requesting
that this Court affirm the trial court’s dismissal pursuant to Rule 20, Rules of the Court of Criminal
Appeals. In its motion, the State asserts that the Petitioner has failed to establish that due process
requires tolling of the statute of limitations.

         Under the Post-Conviction Procedure Act of 1995, exceptions to the statute of limitations
are explicitly set forth, i.e., (1) claims based upon a new rule of constitutional law, (2) claims based
upon new scientific evidence showing innocence, and (3) claims based upon enhanced sentences that
were enhanced because of convictions subsequently found to be illegal. See Tenn. Code Ann. § 40-
30-102(b)(1-3). Petitioner has failed to assert one of these exceptions for tolling the statute.
Notwithstanding, a court may also consider an untimely petition for post-conviction relief if applying
the statute of limitations would deny the petitioner due process. Burford v. State, 845 S.W.2d 204,
208 (Tenn. 1992); see, e.g., Seals v. State, 23 S.W.3d 272 (Tenn. 2000) (holding that due process
mandates the tolling of the statute of limitations under the 1995 Sentencing Act during periods of
a petitioner’s mental incompetence). In Burford v. State, 845 S.W.2d at 208, our supreme court held
that in certain situations application of the statute of limitations in a post-conviction proceeding
might violate constitutional due process. In determining whether there has been such a violation, the
essential question is whether the time period allowed by law provides the petitioner a fair and
reasonable opportunity to file suit. Id.


        The Petitioner asserts that the Parole Board’s formula for determining parole eligibility
nullified the spirit of his plea agreement with the State. He maintains that the “breach” of his plea
agreement, i.e., the Parole Board’s calculation of his release eligibility date, was not made until after
the time for filing a petition for post-conviction relief expired. Thus, he asserts that due process
requires the tolling of the statute of limitations. We are not persuaded by this argument. Any

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challenge to a Department of Correction classification or calculation regarding release eligibility has
no bearing upon the validity of the Petitioner’s conviction or sentence. See Terry W. Holtsclaw v.
State, No. 03C01-9904-CR-00143, 1999 WL 552881, *2 (Tenn. Crim. App., at Knoxville, May 4,
1999). Parole is a privilege and not a right. Tenn. Code Ann. § 40-28-117(a) (2003); Tenn. Code
Ann. § 40-35-503(b) (2003). Because a prisoner does not have a constitutional or inherent right to
conditional release prior to the expiration of a valid sentence, a prisoner has no constitutionally
protected interest in parole. Paul Moss v. Tennessee Board of Probation and Parole, No. M2003-
02125-COA-R3-CV, 2004 WL 2583898, *2 (Tenn. Ct. App., at Nashville, Nov. 12, 2004) (citations
omitted); see also Wright v. Trammell, 810 F.2d 589 (6th Cir.1987)(no constitutionally protected
liberty interest in parole in Tennessee). Post-conviction relief shall only be granted when the
conviction or sentence is void or voidable because of an abridgement of a constitutional right. Tenn.
Code Ann. § 40-30-103 (2003). We conclude that application of the one-year statute of limitations
in this case does not violate principles of due process. Accordingly, the trial court properly
determined that the petition was time-barred.


        Accordingly, it is ordered that the State’s motion is granted. The judgment of the trial court
is affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.




                                               ___________________________________
                                               DAVID G. HAYES, JUDGE




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