        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT JACKSON

                       JUNE SESSION, 1997


ALBERT HOLSTON,           )   C.C.A. NO. 02C01-9609-CR-00298
                          )
      Appellant,          )
                          )

VS.
                          )
                          )
                              SHELBY COUNTY
                                                          FILED
                          )   HON. W. FRED AXLEY
STATE OF TENNESSEE,       )   JUDGE                         July 28, 1997
                          )
                                                          Cecil Crowson, Jr.
      Appellee.           )   (Post-Conviction)           Appellate C ourt Clerk



               ON APPEAL FROM THE JUDGMENT OF THE
                CRIMINAL COURT OF SHELBY COUNTY


FOR THE APPELLANT:            FOR THE APPELLEE:

W AYNE CHASTAIN               JOHN KNOX W ALKUP
66 Monroe, Suite 804          Attorney General and Reporter
Memphis, TN 38103
                              KENNETH W . RUCKER
                              Assistant Attorney General
                              450 James Robertson Parkway
                              Nashville, TN 37243-4351

                              JOHN W. PIEROTTI
                              District Attorney General

                              JOHNNY MCFARLAND
                              Assistant District Attorney General
                              Criminal Justice Complex, Suite 301
                              201 Poplar Street
                              Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                        OPINION

      The Petitioner, Albert Holston, appeals as of right pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the trial court’s denial of his

petition for post-conviction relief. He filed a petition for post-conviction relief on

July 12, 1996. On July 30, 1996, the trial court dismissed the petition without

conducting an evidentiary hearing, finding that it was barred by the statute of

limitations.1 W e affirm the judgment of the trial court.



      On April 30, 1992, the Petitioner was convicted by a Shelby County jury of

aggravated rape and was sentenced to eighteen years imprisonment. A panel

of this Court affirmed his conviction on Septem ber 15, 1993. See State v. Albert

B. Holston, C.C.A. No. 02C01-9210-CR-00247, Shelby County (Tenn. Crim.

App., Jackson, Sept. 15, 1993). It appears from the record that the Petitioner did

not seek perm ission to appeal to our supreme court.



      On July 12, 1996, the Petitioner filed a petition for post-conviction relief

which is the subject of the case sub judice. In the petition, he argued that his trial

counsel rendered ineffective assistance both prior to trial and at trial. He also

argued that the trial court’s intimidating demeanor contributed to his counsel’s

deficient representation, thereby violating his due process rights. The trial court

found that the petition was barred by the statute of limitations and dismissed it

without conducting an evidentiary hearing. It is from the trial court’s order of




      1
          See Tenn . Code A nn. §§ 40-30-2 02 and -20 6(b) (Supp. 199 6).

                                                  -2-
dismissal that the Petitioner appeals, raising the following four issues for our

consideration:

      1) That the trial court erred in finding that his petition for post-
      conviction relief was barred by the statute of limitations;
      2) that the one-year statute of limitations violates due process;
      3) that the one-year statute of limitations violates the Tennessee
      Constitution’s prohibition against the retrospective impairment of
      contractual obligations; and,
      4) that the new Post-Conviction Procedure Act’s provision
      eliminating tolling of the statute of limitations is in contravention of
      Tennessee case law and violates due process.


      The Petitioner first contends that the trial court erred in finding that his

petition for post-conviction relief was barred by the statute of limitations. At the

time the Petitioner’s convictions became final, the statute of limitations applicable

to post-conviction proceedings was three years. Tenn. Code Ann. § 40-30-102

(repealed 1995).     The three-year statute of limitations was subsequently

shortened to one year by the new Post-Conviction Procedure Act, which took

effect on May 10, 1995. See Tenn. Code Ann. § 40-30-201 et seq. (Supp. 1996).

At the time the new Act took effect, the previous three-year statute of limitations

had not expired for the Petitioner.



      Of course, the new Post-Conviction Procedure Act governs this petition

and all petitions filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201 et

seq. (Supp. 1996). This Act provides, in pertinent part, that “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.” Compiler’s Notes

to Tenn. Code Ann. § 40-30-201 (Supp. 1996) (referring to Acts 1995, ch. 207,

§ 3). Because the previous three-year statute of limitations had not expired for


                                         -3-
the Petitioner at the time the new Act took effect, his right to petition for post-

conviction relief survived under the new Act. See Betsy Jane Pendergrast v.

State, C.C.A. No. 01C01-9607-CC-00289, Rutherford County (Tenn. Crim. App.,

Nashville, May 16, 1997); cf. Doyle Carter v. State, C.C.A. No. 01C01-9511-CC-

00398, Davidson County (Tenn. Crim. App., Nashville, Feb. 12, 1997); Eric C.

Pendleton v. State, C.C.A. No. 01C01-9604-CR-00158, Davidson County (Tenn.

Crim. App., Nashville, Feb. 12, 1997); W allace Butler v. Ricky Bell, Warden,

C.C.A. No. 02C01-9510-CC-00297, Fayette County (Tenn. Crim. App., Jackson,

Nov. 19, 1996); Johnny L. Butler v. State, C.C.A. No. 02C01-9509-CR-00289,

Shelby County (Tenn. Crim. App., Jackson, Dec. 2, 1996).



         As a result, the Petitioner had one year from the effective date of the new

Act, May 10, 1995, to file for post-conviction relief. See Compiler’s Notes to

Tenn. Code Ann. § 40-30-201 (Supp. 1996) (referring to Acts 1995, ch. 207, § 3);

Tenn. Code Ann. § 40-30-202(a) (Supp. 1996). He filed his petition for post-

conviction relief on July 12, 1996, a few weeks after the expiration of the one-year

period.      The Petitioner has not alleged that his claims fit within one of the

enumerated exceptions to the one-year statute of limitations. See Tenn. Code

Ann. § 40-30-202(b),(c) (Supp. 1996). Accordingly, we conclude that the trial

court correctly found that the petition was barred by the statute of limitations.2



         As his second issue, the Petitioner argues in the alternative that if the trial

court correctly dismissed the petition as having been time-barred, the new Act’s


         2
            The Petitioner also argues that the trial court erred in failing to enter a preliminary order and
to direc t the district attorn ey gen eral to resp ond to the petition. See Te nn. C ode Ann . §§ 40-30 -207 , -
208. Because the petition clearly shows that it was filed after the expiration of the one-year statute of
lim itations, we be lieve that the trial court properly dism issed the petition upon preliminary
con sideration. See Tenn . Code A nn. § 40-30-20 6(b).

                                                      -4-
one-year statute of limitations violates due process guarantees. See U.S. Const.

amend. XIV, § 1; Tenn. Const. art. I, § 8. The State, on the other hand, argues

that it was within the legislature’s power to enact the one-year statute of

limitations and that the statute does not violate due process because it provides

a reasonable period of time in which post-conviction claims can be asserted.



      It is well-established that the identification of the precise dictates of due

process requires consideration of both the governmental interests involved and

the private interests affected by the official action. Burford v. State, 845 S.W.2d

204, 207 (Tenn. 1992) (citing Fusari v. Steinberg, 419 U.S. 379, 389, 95 S.Ct.

533, 539, 42 L.Ed.2d 521, 529 (1975)).            With regard to post-conviction

proceedings, the private interest at stake is a prisoner’s opportunity to attack his

or her conviction and incarceration on the grounds that he or she was deprived

of a constitutional right during the conviction process. Id. The governmental

interest represented by the statute of limitations is the prevention of the litigation

of stale and groundless claims, with the accom panying cost. Id.



      Furthermore, although freedom from bodily restraint and punishment by the

State without due process of law is a fundamental right, it is clear that states have

no constitutional duty to provide post-conviction relief procedures. Id. (citations

omitted).   Thus, as our supreme court held in Burford, the opportunity to

collaterally assert constitutional violations which occurred during the conviction

process is not a fundamental right entitled to heightened due process protection.

Id.




                                         -5-
      It is also clear that the State has a legitimate interest in preventing the

litigation of stale or fraudulent claims. Id. at 208 (citing Jimenez v. W einberger,

417 U.S. 628, 636, 94 S.Ct. 2496, 2501, 41 L.Ed.2d 363, 370 (1974)). The State

may therefore erect reasonable procedural requirements for triggering the right

to an adjudication, such as statutes of limitations, and may terminate a claim for

failure to comply with a reasonable procedural rule without violating due process

rights. Id. (citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 437, 102 S.Ct.

1148, 1158, 71 L.Ed.2d 265, 279 (1982)). Before a state may terminate a claim

for failure to comply with procedural requirements such as statutes of limitations,

however, due process requires that potential litigants be provided an opportunity

for the presentation of claims at a meaningful time and in a meaningful manner.

Id.



      As was the case in Burford, when our supreme court considered the

constitutionality of the three-year statute of limitations, the question before us is

“whether the State’s policy reflected in the statute affords a fair and reasonable

opportunity for ... bringing ... suit.” Id. (quoting Pickett v. Brown, 638 S.W .2d 369,

376 (Tenn. 1982), rev’d on equal protection grounds, 462 U.S. 1, 103 S.Ct. 2199,

76 L.Ed.2d 372 (1983)). The test is whether the time period provides a petitioner

a reasonable opportunity to have the claimed issue heard and determined. Id.

(citing Michel v. Louisiana, 350 U.S. 91, 93, 76 S.Ct. 158, 160, 100 L.Ed.2d 83,

89 (1955)). Having considered the private and governmental interests at stake,

we conclude that the one-year statute of limitations contained in Tennessee Code

Annotated section 40-30-202 provides a reasonable opportunity for the

presentation of post-conviction claims.         Cf. Burford, 845 S.W .2d at 208.

Accordingly, we believe that the one-year statute of limitations on petitions for

                                          -6-
post-conviction relief does not violate the due process guarantees of the United

States and Tennessee Constitutions.



      Moreover, we do not believe that the application of the one-year statute of

limitations in the present case violated this Petitioner’s due process rights. As we

stated above, the Petitioner’s conviction became final on September 15, 1993.

At that time, the previous three-year statute of limitations applied to the Petitioner,

meaning that he would ordinarily have had until September 15, 1996 to file for

post-conviction relief. The new Post-Conviction Procedure Act took effect on May

10, 1995, and governed all petitions filed after that date, including the Petitioner’s,

which was filed on July 12, 1996. The new Act had the effect of shortening the

statutory period applicable to the Petitioner from September of 1996 to May of

1996. The Petitioner’s claims regarding his trial counsel’s representation and the

trial court’s demeanor were readily apparent as of the conclusion of his trial and

direct appeal. We can only conclude that the application of the one-year statute

of limitations did not violate the Petitioner’s due process rights. The Petitioner’s

second issue therefore lacks merit.



      As his third issue, the Petitioner contends that the one-year statute of

limitations impairs contractual obligations in violation Article I, section 20 of the

Tennessee Constitution.        That constitutional provision provides that “no

retrospective law, or law impairing the obligations of contracts, shall be made.”

Tenn. Const. art. I, § 20. The provision has been interpreted to mean that “no

retrospective law which impairs the obligation of contracts, or any other law which

impairs their obligation, shall be m ade.” Hamilton County v. Gerlach, 176 Tenn.

288, 140 S.W .2d 1084, 1085 (1940) (citations omitted). The Petitioner claims

                                          -7-
that the passage of a law constitutes “a contract between the Legislature and its

constituency.” He asserts that the passage of the previous three-year statute of

limitations on petitions for post-conviction relief3 conferred on prisoners the right

to challenge their convictions within a three-year period. The Petitioner argues

that the subsequent passage of the new Post-Conviction Procedure Act with its

one-year statute of limitations, thereby curtailing the previous three-year period,

was tantamount to an impairment of a contract.



      In our view, the Petitioner is once again arguing that the one-year statute

of limitations does not provide sufficient time in which to file for post-conviction

relief. As we explained during our discussion of the second issue on appeal, we

believe that the one-year statute of limitations does provide a reasonable time

period for the filing of post-conviction petitions. Furthermore, although the new

Act shortens the previous statute of limitations, it does provide those prisoners

who were still within the prior three-year statutory period, such as the Petitioner

in the case at bar, a reasonable opportunity to file for post-conviction relief after

the effective date of the new one-year statutory period. See Compiler’s Notes to

Tenn. Code Ann. § 40-30-201 (Supp. 1996) (referring to Acts 1995, ch. 207, § 3);

cf. Pacific Eastern Corp. v. Gulf Lite Holding Co., 902 S.W .2d 946, 956 (Tenn.

App. 1995) (citations omitted). Accordingly, this issue lacks merit.



      The Petitioner’s fourth and final contention on appeal is another challenge

to the constitutionality of the new Post-Conviction Procedure Act. The Petitioner

focuses on language in the new Act which provides that the one-year “statute of

limitations shall not be tolled for any reason, including any tolling or saving

      3
          See Tenn . Code A nn. § 40-30-10 2 (repealed 199 5).

                                                  -8-
provision otherwise available at law or equity.” Tenn. Code Ann. § 40-30-202(a)

(Supp. 1996). He argues that the elimination of tolling in the new Act is in direct

contravention of a decision rendered by our supreme court, W atkins v. State, 903

S.W .2d 302 (Tenn. 1995), and is therefore violative of due process.



      In W atkins, our supreme court held that the tolling provision codified at

Tennessee Code Annotated section 28-1-106 was applicable to post-conviction

proceedings governed by the previous Post-Conviction Procedure Act. See

W atkins, 903 S.W .2d at 305; T enn. Code Ann. § 40-30-101 et seq. (repealed

1995). That tolling provision reads as follows:

             Persons under disability on accrual of right. -- If the
      person entitled to commence an action is, at the time the cause of
      action accrued, either within the age of eighteen (18) years, or of
      unsound mind, such person, or his representatives and privies, as
      the case may be, may commence the action, after the removal of
      such disability, within the time of limitation for the particular cause
      of action, unless it exceed three (3) years, and in that case within
      three (3) years from the removal of such disability.

Tenn. Code Ann. § 28-1-106 (1980). W atkins involved a petitioner who was

mentally incompetent for a period of time during the running of the previous

three-year statute of limitations on post-conviction petitions.      W atkins, 903

S.W.2d at 303. A panel of this Court has applied the W atkins reasoning to a

case involving a petitioner who filed for post-conviction relief more than three

years after his conviction had become final but within three years of his turning

eighteen years of age, holding that the previous three-year statute of limitations

was tolled while the petitioner was a minor. State v. David W ayne Britt, C.C.A.

No. 02C01-9410-CC-00234, Hardeman County (Tenn. Crim. App., Jackson, July

26, 1995).




                                        -9-
      For purposes of the case sub judice, even if we were to conclude that the

language of Tennessee Code Annotated section 40-30-202(a) eliminated the

tolling provision codified at Tennessee Code Annotated section 28-1-106 and that

the elimination of the tolling provision violated due process guarantees, we do not

believe that the Petitioner would be entitled to seek post-conviction relief. The

Petitioner does not allege that he was a minor or mentally incompetent during the

running of the one-year statute of limitations applicable to his case. Furthermore,

the new Post-Conviction Procedure Act does contain a severability clause. 1995

Tenn. Pub. Acts ch. 207, § 2. As a result, if we concluded that the elimination of

the tolling provision was unconstitutional, the otherwise constitutional one-year

statute of limitations could apparently be given effect without that language and

would, therefore, continue to apply to the Petitioner. Because the Petitioner has

not alleged that he was a minor or mentally incompetent during the running of the

statute of limitations, the tolling provision codified at Tennessee Code Annotated

section 28-1-106 has no application in the present case and would not alter the

statutory period for the Petitioner. Accordingly, we can only conclude that the

fourth contention is without merit.



      For the reasons set forth in the discussion above, we conclude that the trial

court did not err in dismissing the petition for post-conviction relief. We also

conclude that the Petitioner’s challenges to the constitutionality of the one-year

statute of limitations on petitions for post-conviction relief lack merit.    The

judgment of the trial court is therefore affirmed.




                                        -10-
                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE



___________________________________
JOE G. RILEY, JUDGE




                             -11-
