              IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                         FILED
                                     AT KNOXVILLE
                                                                       September 28, 1999

                                 MAY 1999 SESSION                      Cecil Crowson, Jr.
                                                                      Appellate Court Clerk




ALFONZO PECK,                           )
                                        )       C.C.A. No. 03C01-9809-CR-00329
      Appellant,                        )
                                        )       Hamilton County
v.                                      )
                                        )       Honorable Douglas A. Meyer, Judge
STATE OF TENNESSEE,                     )
                                        )       (Post-Conviction)
      Appellee.                         )




FOR THE APPELLANT:                              FOR THE APPELLEE:

ARDENA J. GARTH                                 PAUL G. SUMMERS
District Public Defender                        Attorney General & Reporter

DONNA ROBINSON MILLER                           MARVIN S. BLAIR, JR.
Assistant District Public Defender              Assistant Attorney General
701 Cherry Street, Suite 300                    425 Fifth Avenue North
Chattanooga, TN 37402                           Nashville, TN 37243

                                                WILLIAM COX
                                                District Attorney General
                                                600 Market Street, Suite 300
                                                Chattanooga, TN 37402




OPINION FILED: __________________________


AFFIRMED


ALAN E. GLENN, JUDGE




                                            1
                                              OPINION


        The petitioner, Alfonzo Peck, has appealed the order of the trial court denying his

motion to reopen a petition for post-conviction relief based on the claim that his 1983

indictment for aggravated rape was constitutionally defective because it did not sufficiently

allege a mens rea. We affirm the trial court’s denial of his petition.



                                PROCEDURAL BACKGROUND

        On March 31, 1983, the petitioner was found guilty by a jury of aggravated rape, and

all subsequent appeals were denied. On April 18, 1985, he filed a petition for post-

conviction relief, which was finally denied on February 9, 1987. On October 18, 1996,

petitioner filed a Motion to Reopen Petition for Post-Conviction Relief. That motion was

denied on January 9, 1998. Notice of appeal was filed, along with notice that no transcript

would be filed because the trial court had dismissed petitioner’s motion as time-barred

without an evidentiary hearing. 1



                                             ANALYSIS

                                      I. Standard of Review

        The law controlling petitions for post-conviction relief is set out in the 1995 Post-

Conviction Procedure Act.2 The Act sets out the procedure for filing a motion to reopen

a post-conviction relief petition in § 40-30-217. The standard of review of denial of a

motion to reopen is the following:

                If the motion is denied, the petitioner shall have ten (10) days
                to file an application in the court of criminal appeals seeking
                permission to appeal. The application shall be accompanied
                by copies of all the documents filed by both parties in the trial
                court and the order denying the motion. The state shall have
                ten (10) days to respond. The court of criminal appeals shall
                not grant the application unless it appears that the trial court
                abused its discretion in denying the motion. If it determines
                that the trial court did so abuse its discretion, the court of
                criminal appeals shall remand the matter to the trial court for


        1
          It is unclear from the record that this was the basis for the court’s dismissal of petitioner’s
motion to reopen. However, based upon the analysis contained in this opinion, the motion was,
in fact, time-barred, and the trial court would have erred had it granted the motion to reopen.
        2
       Id. §§ 40-30-201 to -310. This new law went into effect on May 10, 1995. See id.,
Compiler’s Notes.

                                                   2
                 further proceedings.

Tenn. Code Ann. § 40-30-217(c)(1997).               Our Supreme Court has determined that,

“[g]enerally stated, the abuse of discretion standard does not authorize an appellate court

to merely substitute its judgment for that of the trial court. Thus, in cases where the

evidence supports the trial court’s decision, no abuse of discretion is found.” Myint v.

Allstate Ins. Co., 970 S.W.2d 920 (Tenn. 1998). Therefore, we review the record in light

of this abuse of discretion standard and ask, first, whether the record supports a finding

that petitioner’s motion to reopen was time-barred and, second, whether any exceptions

applied to save petitioner’s motion.



                            II. Application of Statute of Limitations

       Between the date of the filing of petitioner’s initial petition for post-conviction relief

on April 18, 1985, and its final denial on appeal on February 9, 1987, the law in Tennessee

regarding post-conviction relief procedure changed. At the time of defendant’s initial filing

for post-conviction relief, the 1967 Post-Conviction Procedure Act was the controlling

statutory law. Under that Act, there was no statute of limitations for collateral challenge to

criminal convictions on the basis of constitutional error.              However, the legislature

subsequently amended the 1967 Act and adopted a three-year statute of limitations that

became effective on July 1, 1986.3 The petitioner’s April 18, 1985, petition was already

moving through the appeals process. When that petition was finally denied on February

9, 1987, petitioner had three years under the 1986 Act in which to file additional petitions.4

He did not do so, and further petitions became time-barred on February 9, 1990.




       3
           The relevant section stated:

                 When prisoners may petition for post-conviction relief.—A prisoner
                 in custody under sentence of a court of this state must petition for
                 post-conviction relief under this chapter within three (3) years of the
                 date of the final action of the        highest state appellate court to
                 which an appeal is taken or consideration of such petition shall be
                 barred.

       Tenn. Code Ann. § 40-30-102 (repealed 1995).
       4
        By contrast, the new law, the 1995 Post-Conviction Procedure Act, clearly provides for only
one petition for post-conviction relief attacking a single judgment. See Tenn. Code Ann. § 40-30-
202(c) (1997).

                                                   3
       On October 18, 1996, petitioner filed a motion to reopen his petition for post-

conviction relief. At that point in time, petitioner became subject to the current statutory

procedure as set out in the 1995 Post-Conviction Procedure Act. Under that Act, a motion

to reopen, like an initial petition for post-conviction relief, must be filed “within one (1) year

of the date of final action of the highest state appellate court to which an appeal is taken.”5

Because there existed at the time of the 1995 Act, a “potential class of petitioners for whom

the new one-year limitations period had expired but the three-year limitations period under

the old law had not[,]” the language of the enabling provision provided these petitioners

with a grace period ending on May 10, 1996. Carter v. State, 952 S.W.2d 417, 420 (Tenn.

1997). Our Supreme Court has determined that this grace period, in spite of some

ambiguity of language, applies only to that class of petitioners whose claims were still

viable under the 1986 Act. Id. at 418. The petitioner is not in this protected class; his

petition for post-conviction relief under the 1986 Act ceased to be viable on February 9,

1990—three years from the date of final action of the highest state appellate court to which

petitioner appealed, that final action having been taken on February 9, 1987. Ample

evidence supported the trial court’s finding that petitioner’s motion to reopen, filed on

October 18, 1996, was time-barred.




       5
           The purpose of the legislature in setting the limitations period at one year is clear:

                When prisoners may petition for post-conviction relief.—
                (a) Except as provided in subsections (b) and (c), a person
       in       custody under a sentence of a court of this state must
       petition         for post-conviction relief under this part within one (1)
       year of          the date of the final action of the highest state
       appellate court           to which an appeal is taken or, if no appeal is
       taken, within one (1) year of the date on which the judgment
       became final, or consideration of such petition shall be barred. The
       statute          of limitations shall not be tolled for any reason,
       including any tolling or saving provision otherwise available at law
       or equity.       Time is of the essence of the right to file a petition for
       post- conviction relief or motion to reopen established by this
                chapter, and the one-year limitation period is an element of
                the right to file such an action and is a condition upon its
                exercise. Except as specifically provided in subsections (b)
                and (c) , the right to file a petition for post-conviction relief or
                a motion to reopen under this chapter shall be extinguished
                upon the expiration of the limitations period.

       Tenn. Code Ann. § 40-30-202 (a).

                                                     4
                                III. Statutory Exceptions

       The 1995 Post-Conviction Procedure Act recognized that some claims may not

come into being until after the one-year statute of limitations has already run. Therefore,

the legislature adopted a highly limited set of circumstances under which a court has

jurisdiction to consider a petition or motion that is otherwise time-barred. These three

requirements duplicate the first three requirements that apply to all motions to reopen. See

Tenn. Code Ann. § 40-30-217(a) (1997). No court has jurisdiction to consider a petition

filed outside the one-year statute of limitations unless the petition meets one of three

statutory exceptions:

              (1) The claim in the petition 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, if retrospective
              application of that right is required. Such petition must be filed
              within one (1) year of the ruling of the highest state appellate
              court or the United States [S]upreme [C]ourt establishing a
              constitutional right that was not recognized as existing at the
              time of trial;

              (2) The claim in the petition is based upon new scientific
              evidence establishing that such petitioner is actually innocent
              of the offense or offenses for which the petitioner was
              convicted; or

              (3) The claim asserted in the petition seeks relief from a
              sentence that was enhanced because of a previous conviction
              and such conviction in the case in which the claim is asserted
              was not a guilty plea with an agreed sentence, and the
              previous conviction has subsequently been held to be invalid,
              in which case the petition must be filed within one (1) year of
              the finality of the ruling holding the previous conviction to be
              invalid.

Tenn. Code Ann. § 40-30-202(b)(1)-(3).



        Petitioner does not suggest that he meets either the second or third exception.

That leaves only the possibility of his meeting the first exception: that a final ruling of an

appellate court has established a constitutional right, applicable to his claim, that was not

recognized as existing at the time of his trial and that it is to be applied retrospectively.

Petitioner argues that the language of his 1983 indictment was constitutionally defective

because it did state a mens rea. However, no indictment is included with defendant’s

motion to reopen. This Court has stated that, “[w]hen the record is incomplete, and does

not contain the proceedings and documents relevant to an issue, this court is precluded


                                              5
from considering the issue.” State v. Bennett, 798 S.W.2d 783,789 (Tenn. Crim. App.

1990), cert. denied, 500 U.S. 915 (1991). See also State v. Banes, 874 S.W.2d 73 (Tenn.

Crim. App. 1993) (“It is the appellant’s obligation to have prepared an adequate record in

order to allow meaningful review on appeal”). Petitioner’s recollection of the wording of his

1983 indictment is insufficient to preserve that issue on appeal. 6 This defect is fatal to his

petition, and, therefore, the trial court did not abuse its discretion in finding no statutory

exception to save petitioner’s motion to reopen.



                                        CONCLUSION

       There was ample evidence to support the trial court’s determination that the motion

to reopen was time-barred. The applicable statutory language is clear. Further, the

defendant waived any consideration of his indictment by failing to provide an adequate

record on appeal that included the indictment itself and by failing to cite any final decision

by an appellate court establishing a constitutional right that was not recognized as existing

at the time of his trial and on which he bases his claim.



       We also note that we cannot treat this petition as a petition for writ of habeas corpus

because it was filed in Hamilton County, where the petitioner’s criminal trial was held,

rather than in Johnson County, where he is incarcerated. See Tenn. Code Ann. § 29-21-

105 (1980). Additionally, the writ of habeas corpus “will issue only in the case of a void

judgment or to free a prisoner held in custody after his term of imprisonment has expired.”

Potts v. State, 833 S.W.2d 60, 62 (Tenn. 1992). It is through the post-conviction relief

process, that a prisoner is provided a means for challenging “convictions that are alleged

to be either void or voidable because of the abridgement of constitutional rights.” Id.



       For the above stated reasons, we affirm the ruling of the trial court denying motion


       6
        In State v. Melson, 683 S.W.2d 342, 351 (Tenn. 1982), cert. denied, 459 U.S. 1137 (1983),
our Supreme Court found that a photocopy of a search warrant attached to a memorandum to a
motion to suppress evidence with no other reference to or incorporation of the warrant did not
preserve it for appellate review. In addition, Tennessee Rule of Appellate Procedure 27(a)(7)
requires that the brief of the appellant make appropriate reference to the record; and Rule 10(b)
of the Rules of the Court of Criminal Appeals provides that issues which are not supported by
appropriate references to the record are treated as waived. The petitioner’s failure to provide a
copy of the indictment is violative of these rules as well.

                                               6
to reopen petition for post-conviction relief.




                                           ________________________________________
                                           ALAN E. GLENN, JUDGE



CONCUR:




__________________________________
JAMES CURWOOD WITT, JR., JUDGE




__________________________________
JOHN EVERETT WILLIAMS, JUDGE




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