         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs January 18, 2001

              RAYMOND HARDIE COX v. STATE OF TENNESSEE

                       Appeal from the Circuit Court for Marion County
                               No. 4154    Buddy Perry, Judge



                      No. M1999-00447-CCA-R3-PC - Filed March 2, 2001


The Defendant, Raymond Hardie Cox, appeals as of right from the dismissal of his post-conviction
petition. He asserts that the trial court erred by dismissing his petition as barred by the statute of
limitations. We find no error; thus, we affirm the trial court’s dismissal of the petition.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Raymond Hardie Cox, Atlanta, Georgia, Pro Se.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Smith, Assistant Attorney General;
J. Michael Taylor, District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

         On September 8, 1997, the Defendant filed both a pro se petition for post-conviction relief
and an amended pro se petition for post-conviction relief in the Marion County Circuit Court. In his
petition, he asserted that on March 18,1991, he entered a guilty plea to a charge of burglary, and on
June 15, 1992, he entered multiple guilty pleas to charges of burglary and forgery. He argued that
his pleas were not knowing and voluntary, that he received ineffective assistance of counsel when
he entered his pleas, that the prosecution engaged in various forms of misconduct by failing to
properly investigate and discover certain facts related to his convictions, and that his rights under the
Fourth, Sixth, and Fourteenth Amendments to the United States Constitution were violated. He
further asserted that the statute of limitations should be tolled because he was unaware that he was
entitled to relief until he was charged in federal court for another offense and his three prior burglary
convictions were used to enhance his punishment. In his amended petition, the Defendant asserted
that the statute of limitations should also be tolled because he recently received newly discovered
evidence which “presents a novel issue and is therefore, exempt from a statutory time bar for filing
for relief.” The trial court dismissed his petition as barred by the statute of limitations. On appeal,
the Defendant reiterates his earlier claims and further asserts that to apply the statute of limitations
to his case would deprive him of a reasonable opportunity to have his claims heard and decided. We
find no merit to the Defendant’s assertions.


        In 1991 and 1992, when the Defendant entered the guilty pleas at issue, the statute of
limitations for filing a petition for post-conviction relief was three years of the date of the final action
of the highest state appellate court to which an appeal is taken. See Tenn. Code Ann. § 40-30-102
(repealed 1995). Because no appeal was taken from the guilty pleas, the statute of limitations would
have expired on March 18, 1994 for the 1991 plea and on June 15, 1995 for the 1992 pleas.
However, when the three-year statute of limitations was repealed on May 10, 1995, the enabling
provision of the Post-Conviction Procedure Act of 1995 provided, “Notwithstanding any other
provision of this act to the contrary, any person having a ground for relief recognized under this act
shall have at least one (1) year from the effective date of this act to file a petition or a motion to
reopen under this act.” 1995 Tenn. Pub. Acts 207, § 3. Thus, because the Defendant still had a
ground for relief under the three-year statute of limitations for his 1992 pleas when the new Act was
passed, he then had until May 10, 1996 to file a post-conviction petition relating to his 1992 pleas.
See id.; Carter v. State, 952 S.W.2d 417, 419-20 (Tenn. 1997). Clearly, by 1997, when the
Defendant filed his petition, the statute of limitations had expired.

        A court may entertain a post-conviction petition filed after the expiration of the statute of
limitations if (1) the claim 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; (2) the claim is based upon
new scientific evidence establishing that the defendant is actually innocent of the offense; or (3) the
claim seeks relief from a sentence that was enhanced because of a previous conviction which has
subsequently been held to be invalid. Tenn. Code Ann. § 40-30-202(b). None of these exceptions
apply to the Defendant’s case. While the Defendant claims to have received new evidence, his new
evidence is not scientific evidence; thus, the Defendant’s new evidence would not entitle him to
post-conviction relief. See id.; Newsome v. State, 995 S.W.2d 129, 133 n.4 (Tenn. Crim. App.
1998). The Defendant’s new evidence consists of an affidavit indicating that Sam Moore owned the
building which the Defendant allegedly burglarized on November 27, 1991 and that the building was
open to the public twenty-four hours a day, while the indictment stated that the building was owned
by Mike Castle and that it was not open to the public. Further, the evidence consists of an affidavit
from Mike Castle indicating that he owned a “Washeteria” in Kimball, Tennessee and that the
business was open twenty-four hours a day when the Defendant allegedly burglarized it on February
25, 1991, while the indictment stated that the business was not open to the public.1 Certainly, this
is not new scientific evidence establishing the Defendant’s innocence of the crimes charged; it is
evidence that the facts surrounding the crimes may have been somewhat different from those alleged




         1
          The indictments charging the Defendant are not in the record . Our analysis is b ased solely o n the Defen dant’s
allegations of fac t in his petitions and in his brief to this Co urt.

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in the indictments.2 Accordingly, it does not suffice to provide the trial court with jurisdiction to
entertain the Defendant’s post-conviction petition.

        Finally, the Defendant argues that the application of the statute of limitations to his case
would deny him the reasonable opportunity to have his claims heard and decided because he did not
know he had the claims until his convictions were used to enhance his punishment for a later
conviction. In so doing, he relies on Burford v. State, 845 S.W.2d 204 (Tenn. 1992), in which our
supreme court held that “due process requires that potential litigants be provided an opportunity for
the presentation of claims in a meaningful time and in a meaningful manner.” Id. at 208; see also
Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000). The Burford court concluded that while the three-
year statute of limitations for the filing of post-conviction petitions, which was in effect at the time,
generally provides litigants with a reasonable opportunity to have claims heard and decided,
application of the statute may violate due process if it bars a claim that is based on grounds for relief
that did not exist when the limitations period began to run. See Burford, 845 S.W.2d at 208-09. In
Burford, the defendant’s sentence was enhanced on the basis of prior convictions, which were later
declared invalid. See id. at 208. Until the later convictions were held invalid, the defendant had no
opportunity to challenge the enhanced sentence; thus, the application of the statute of limitations
denied the defendant a reasonable opportunity to have his claims heard and decided.3 Id. at 208-09.

        Contrary to the Defendant’s assertions, Burford will not provide him with relief in this case.
The Defendant presented claims of ineffective assistance of counsel, involuntary guilty plea,
prosecutorial misconduct, and violation of multiple provisions of the United States Constitution.
The claims the Defendant presented were in existence during the entire three-year statute of
limitations period following his pleas. According to Burford, the three-year statute of limitations
period provided a reasonable opportunity for the presentation of these post-conviction claims.4
Burford, 845 S.W.2d at 208. A defendant “who fails to assert an existing claim . . . in a timely
fashion may not expect due process relief under Burford.” Seals, 23 S.W.3d at 278; see also Sands
v. State, 903 S.W.2d 297, 301 (Tenn. 1995). Lack of knowledge that claims exist does not toll the


         2
           When a defenda nt discovers new factual evidence establishing his or her innocence, as opposed to new
scientific evidence, h e or she has a limited reme dy available in the form of a writ of error co ram nob is. See Tenn. Code
Ann. § 40-26 -105; Newsome, 995 S.W.2d at 133. However, a writ of error co ram nob is must be filed within one year
from the date the ju dgment b ecome fina l. Tenn. Co de Ann. § 27-7-10 3. Also, it will not provide a defendant relief from
a guilty plea if the guilty plea was voluntar ily and know ingly entered. Newsome, 995 S.W.2 d at 133 -34. “A petition
for the writ of error co ram nob is is not intended to relieve a pa rty of its own neglige nce, ignoran ce, or chan ge of mind.”
Id. at 134.

         3
           This factual scenario was remedied under the Post-Conviction Procedure Act of 1995, which permits a court
to entertain a petition filed after the expiration of the statute of limitations if the claim in the petition seeks relief from
a sentence that was enhanced because of a previous conviction w hich has subs equently be en declare d invalid. See Tenn.
Code Ann. § 40-30-202(b )(3).

         4
          The supreme court has also held that the current one -year statute of limitatio ns provide s a defenda nt a
reasonab le opportu nity to raise post-c onviction cla ims in a reaso nable time and ma nner. See Seals, 23 S.W.3d at 279;
see also Carother s v. State, 980 S.W.2d 215 , 217-18 (Tenn. Crim. App. 1997).

                                                              -3-
statute of limitations. See Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App. 1996). Thus,
this Defendant, who failed to present his existing claims in a timely fashion, may not receive relief
under Burford.

        Accordingly, we hold that the Defendant’s post-conviction petition was barred by the statute
of limitations. The judgment of the trial court is affirmed.




                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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