          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT JACKSON
                       AUGUST SESSION, 1997




MONROE E. DAVIS,           )
                           )    No. 02C01-9608-CR-00291
      Appellant            )
                           )    SHELBY COUNTY
vs.                        )
                           )    Hon. Arthur T. Bennett, Judge
STATE OF TENNESSEE,        )

      Appellee
                           )
                           )
                                (Post-Conviction)
                                                            FILED
                                                             August 19, 1997
For the Appellant:              For the Appellee:           Cecil Crowson, Jr.
                                                            Appellate C ourt Clerk
MICHAEL E. SCHOLL               CHARLES W. BURSON
212 Adams Avenue                Attorney General and Reporter
Memphis, TN 38103
                                KENNETH W. RUCKER
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                WILLIAM GIBBONS
                                District Attorney General

                                RHEA CLIFT
                                Asst. District Attorney General
                                Criminal Justice Complex
                                Suite 301
                                201 Poplar Street
                                Memphis, TN 38103



OPINION FILED:

AFFIRMED PURSUANT TO RULE 20



David G. Hayes
Judge
                                                 OPINION



         The appellant, Monroe E. Davis, appeals the Shelby County Criminal

Court's dismissal of his petition for post-conviction relief. On October 6, 1989,

the appellant pled guilty to one count of second degree murder and one count of

petit larceny. Pursuant to a plea agreement, the appellant was sentenced, as a

range I offender, to twenty years for the murder conviction and to one year for

the petit larceny conviction to be served concurrently in the Department of

Correction. On April 4, 1995, he filed a petition for post-conviction relief

asserting a breach of his negotiated plea agreement in that he was denied

release by the Board of Parole after thirty percent of his sentence was served.

The trial court dismissed the petition as being barred by the three year statute of

limitations. See Tenn. Code Ann. § 40-30-102(1990). In this appeal, the

appellant contends that, "due to the motion to recuse and [the] transfer of his

petition to a new court without proper notice," the statute of limitations should not

bar his petition.1



         The record supports the trial court's finding that the petition is time-barred.

The limitations period on the appellant's claims began to run on November 6,

1989. See Tenn. Code Ann. § 40-30-102 (repealed 1995). Thus, the appellant

had three years from this date in which to file a cognizable claim for post-

conviction relief.2 Tenn. Code Ann. § 40-30-102. The petition in the instant case

was filed on April 4, 1995, well past the three year statute of limitations; thus, the


         1
           Specifically, the appellant contends that the trial court's order granting its recusal
prevented him from knowing in which court an amendm ent to his petition should be filed. The
app ellant filed his po st-conviction petition on April 4, 1995 . Sub stituted cou nse l was app ointed to
represent the appellant in this matter on January 10, 1996. On January 12, 1996, a motion was
filed req ues ting tha t the trial judge b e rec use d. On M arch 7, 1996 , the m otion w as g rante d. First,
the appe llant's original petition was filed o utside the three yea r period. T he a ppe llant's m otion to
recuse was filed approximately nine months after his post-conviction petition was filed. Moreover,
lack of know ledge do es n ot excus e late filings . Sk inner v. State, No. 02C01-9403-CC-00039
(Tenn . Crim . App . at Jackson , July 13, 1994), perm. to appeal denied, (Tenn. Oct. 10, 1994)
(citing W illis v. State, No. 01C0 1-9211-C R-003 59 (Te nn. Crim . App. at Nashville, Oct. 21, 1993),
perm. to appeal denied, (Te nn. M ar. 7, 1994 )). Th is claim is without m erit.

         2
             The appellant had until Novem ber 6, 1992, to file a petition for post-con viction relief.

                                                       2
appellant is "barred" from seeking post-conviction relief.



       Notwithstanding the fact that the petition is time-barred, the appellant fails

to state a constitutionally cognizable claim for relief under the Post-Conviction

Procedure Act. See Tenn. Code Ann. § 40-30-105 (1990). The release

eligibility date is the earliest date an inmate convicted of a felony is eligible for

parole and is dependant upon numerous factors. No constitutional right exists to

be released at the earliest release eligibility date. See Depew v. State, No.

03C01-9504-CR-00116 (Tenn. Crim. App. at Knoxville, Aug. 21, 1995).



       Pursuant to Rule 20, Rules of the Court of Criminal Appeals, we affirm the

judgment of the trial court.




                                     ____________________________________
                                     DAVID G. HAYES, Judge



CONCUR:



______________________________
JERRY L. SMITH, Judge



_____________________________
THOMAS T. WOODALL, Judge




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