        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs at Jackson August 4, 2015

             DAVID SCOTT KRUSE v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Trousdale County
                       No. 541A23    Brody N. Kane, Judge


               No. M2015-00360-CCA-R3-PC – Filed August 13, 2015
                       _____________________________

Convicted of first degree murder and sentenced to life in prison, petitioner, David Scott
Kruse, has filed his third petition for post-conviction relief. The post-conviction court
summarily dismissed the petition as being time-barred. Upon our review, we affirm the
judgment of the post-conviction court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROGER A. PAGE, J., delivered the opinion of the Court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

David Scott Kruse, Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Tom P. Thompson, Jr., District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

                                 I. Procedural History

       Petitioner was convicted in 1981 of first degree murder and was sentenced to life
in prison. State v. David Scott Kruse, No. 88-194-III, 1989 WL 34934, at *1 (Tenn.
Crim. App. Apr. 12, 1989). On direct appeal, this court affirmed his conviction. Id.; see
State v. David Kruse, No. 81-314-III (Tenn. Crim. App. Oct. 14, 1982). The supreme
court denied discretionary review. Id.

      On November 10, 1983, petitioner, acting pro se, filed a petition for post-
conviction relief alleging that he had been denied effective assistance of counsel. Id.
The post-conviction court appointed counsel to represent him, and following an
evidentiary hearing, the court denied relief. Id. Petitioner failed to perfect his appeal to
this court; nonetheless, the post-conviction court permitted him to refile his petition for
relief in February 1987 because he had not had appellate review of the court’s dismissal
of his petition. Id. Thus, on February 18, 1987, petitioner was given the opportunity for
a new evidentiary hearing. Id. However, at the appointed time, petitioner, through
counsel, stated that he did not desire to proceed further with his post-conviction efforts
and instead proclaimed his intent to rely solely on a federal petition that he had pending.
Id. Accordingly, the post-conviction court dismissed the refiled petition, and petitioner
did not appeal from that judgment. Id.

       Subsequently, on June 28, 1988, this court granted petitioner’s motion to late-file
the appeal and for transmission of the record and transcript to our court. Id. Our order
reserved the question of whether the “matter was untimely filed.” Id. Because
petitioner’s first appeal was filed in a timely manner, in the interests of justice we
considered the appeal as being properly before us and affirmed the judgment of the post-
conviction court. Id. at *2.

        On October 25, 1990, petitioner filed a subsequent petition for post-conviction
relief, which the post-conviction court summarily dismissed, finding that it was barred by
the statute of limitations. State v. David Kruse, No. 01-C-019105CR00130, 1991 WL
255891, at *1 (Tenn. Crim. App. Dec. 5, 1991), perm. app. denied (Tenn. March 16,
1992). On appeal, this court affirmed the judgment of the post-conviction court. Id. at
*2.

      On January 20, 2015, petitioner filed his third petition for post-conviction relief,
which the court dismissed as being time-barred. This appeal follows.

                                        II. Analysis

       Tennessee Code Annotated section 40-30-102(b) states that subject to limited
exceptions, “[n]o court shall have jurisdiction to consider a petition filed after the
expiration of the limitations period.” Petitioner has not alleged that any of the exceptions
contained in subsections (1)-(3) apply to his case. Thus, the petition is clearly time-
barred.

        Moreover, this is petitioner’s third petition for post-conviction relief. Section 40-
30-102(c) prohibits the filing of more than one petition: “This part contemplates the
filing of only one (1) petition for post-conviction relief. In no event may more than one
(1) petition for post-conviction relief be filed attacking a single judgment.” (emphasis
added). It also provides the procedure by which to seek further post-conviction review:


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       If a prior petition has been filed which was resolved on the merits by a
       court of competent jurisdiction, any second or subsequent petition shall be
       summarily dismissed. A petitioner may move to reopen a post-conviction
       proceeding that has been concluded, under the limited circumstances set out
       in § 40-30-117.

Id.

        In this case, petitioner’s first petition for relief was resolved on the merits by the
post-conviction court, and this court granted delayed appellate review of the denial of
relief. Clearly, the post-conviction court did not err in summarily dismissing the petition.

                                      CONCLUSION

       Based upon the briefs of the parties, our review of the record, and the applicable
legal authorities, we affirm the judgment of the post-conviction court.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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