            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                      AT JACKSON

                                 MAY 1997 SESSION



ARTHUR MELVIN TURNER,             *      C.C.A. # 02C01-9607-CR-00233

             Appellant,           *      SHELBY COUNTY

VS.                               *      Hon. John P. Colton, Jr., Judge

STATE OF TENNESSEE,               *      (Post-Conviction)

             Appellee.            *
                                                              FILED
                                                                  July 8, 1997

For Appellant:                           For Appellee:        Cecil Crowson, Jr.
                                                              Appellate C ourt Clerk

Arthur Melvin Turner                     Charles W. Burson
Pro Se                                   Attorney General & Reporter
No. 13253-076
Federal Correctional Institute           William David Bridgers
P.O. Box 34550                           Assistant Attorney General
Memphis, TN 38134-0550                   450 James Robertson Parkway
                                         Nashville, TN 37243-0493

                                         Lorraine Craig
                                         Asst. District Attorney General
                                         Criminal Justice Center
                                         201 Poplar Avenue, Suite 301
                                         Memphis, TN 38103


OPINION FILED:_____________________



AFFIRMED



PER CURIAM
                                          OPINION

                 The petitioner, Arthur Melvin Turner, appeals the trial court's denial of

his petition for post-conviction relief. The issue presented for review is whether the

trial court correctly dismissed the petition without an evidentiary hearing on the basis

that it was barred by the statute of limitations. We affirm the judgment of the trial

court.



                 This post-conviction petition, filed April 15, 1996, challenges the

validity of three separate convictions: a March 17, 1971, guilty plea to third degree

burglary; a May 23, 1974, guilty plea to second degree burglary; and a February 28,

1983, guilty plea. The petitioner contends these sentences are being used to

enhance a sentence received in federal court. He alleges that the guilty pleas were

not knowingly and voluntarily made. The trial court summarily dismissed the petition

as being time-barred.



                 In this appeal of right, the petitioner makes several arguments as to

why his petition should not be barred by the statute of limitations. First, he contends

that the statute of limitations does not apply because he is in custody of the federal

rather than state government. This court has previously held, however, that there is

no distinction under the post-conviction act between a prisoner in federal custody

and one in state custody. Passarella v. State, 891 S.W.2d 619, 622-23 (Tenn. Crim.

App. 1994). Also, this court has upheld application of the statute of limitations

against a federal prisoner. See Phillip Woody v. State, No. 03C01-9211-CR-00396,

slip op. at 5 (Tenn. Crim. App., at Knoxville, July 29, 1993). Thus, this contention is

without merit.



                 The petitioner also contends that application of the statute of


                                              2
limitations violates the ex post facto provisions of both the state and federal

constitutions. Our courts have consistently rejected this argument. See State v.

Richard S. Butler, No. 1338, slip op. at 3 (Tenn. Crim. App., at Knoxville, May 19,

1992). See also William Lynn Johnson v. State, No. 02C01-9605-CR-00136, slip

op. at 5 (Tenn. Crim. App., at Jackson, June 10, 1997).



              Next, the petitioner argues that the new Post-Conviction Procedure Act

creates a one-year window in which any petitioner may file. Effective May 10, 1995,

the new Post-Conviction Procedure Act replaced the prior act in its entirety. See

1995 Tenn. Pub. Act 207, §§ 1 and 3. Because this petition was filed in April of

1996, the new act applies. The most recent legislation replaced a three-year with a

one-year limitation:

              (a) ...[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....

              (b) No court shall have jurisdiction to consider a petition
              filed after such time unless:

                        (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

                                             3
              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 (Supp. 1996).



              Because the convictions in this case became final in 1971, 1974, and

1983, this petition appears to have been barred not only by the current one-year

statute of limitations but also the former three-year statute. Moreover, the grounds

raised in the petition and on appeal do not appear to fall within any of the exceptions

set out in Tenn. Code Ann. § 40-30-202(b)(1), (2), or (3) (Supp. 1996).



              In Arnold Carter v. State, No. 03C01-9509-CC-00270 (Tenn. Crim.

App., at Knoxville, July 11, 1996), appeal granted, (Tenn., Dec. 2, 1996), a panel of

this court, by a two-to-one margin, ruled that the literal terms of the new statute

created a one-year window, starting on May 10, 1995, during which post-conviction

petitions may be filed, notwithstanding the date of the judgment:

              This act shall take effect upon becoming a law, the public
              welfare requiring it and shall govern all petitions for post-
              conviction relief filed after this date, and any motions
              which may be filed after this date to reopen petitions for
              post-conviction relief which were concluded prior to the
              effective date of this act. 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. Act 207, § 3 (emphasis added).



              This majority found no ambiguities in the terminology of the statute

despite the reasonable argument by the dissent to the contrary. In Carter, our

supreme court granted the state's application for permission to appeal. While no

decision has yet been filed, other panels of this court have adopted the dissenting

                                            4
view in Carter and have held that the new act did not create a new one-year filing

period. See, e.g., Ronald Albert Brummitt v. State, No. 03C01-9512-CC-00415

(Tenn. Crim. App., at Knoxville, Mar. 11, 1997); Jimmy Earl Lofton v. State, No.

02C01-9603-CR-00073 (Tenn. Crim. App., at Jackson, Mar. 7, 1997); Roy Barnett v.

State, No. 03C01-9512-CV-00394 (Tenn. Crim. App., at Knoxville, Feb. 20, 1997);

Stephen Koprowski v. State, No. 03C01-9511-CC-00365 (Tenn. Crim. App., at

Knoxville, Jan. 28, 1997); Johnny L. Butler v. State, No. 02C01-9509-CR-00289

(Tenn. Crim. App., at Jackson, Dec. 2, 1996). A majority of this panel now adheres

to the holding in these subsequent cases. Thus, treating the petition as one for

post-conviction relief, this claim is barred by the statute of limitations under the new

Act.



              The petitioner also argues he is entitled to relief under the principles

announced in State v. Frazier, 784 S.W.2d 927 (Tenn. 1990); State v. Newsome,

778 S.W.2d 34 (Tenn. 1989); and State v. McClintock, 732 S.W.2d 268 (Tenn.

1987). Frazier held that Boykin was not to be applied retrospectively and that

Mackey violations that exceeded the mandates of Boykin were not subject to review

during a post-conviction proceeding. Frazier, 784 S.W.2d at 928. Newsome held

that the harmless error rule applies to violations of Mackey. Newsome, 778 S.W.2d

at 38. Neither Frazier nor Newsome created a new constitutional right to be applied

retroactively. The plain language in McClintock provides that the ruling only applies

to litigants already in the "pipeline." McClintock, 732 S.W.2d at 274. None of these

rulings afford the petitioner any relief.



              The petitioner also argues that the former post-conviction statute of

limitations does not apply to guilty proceedings unless an action is filed in the

highest state appellate court. Our court has routinely held that the statute of


                                            5
limitations on guilty pleas commences "when the judgment of conviction [is]

entered." Sharon Ann Conner v. State, No. 03C01-9509-CC-00279, slip op. at 2

(Tenn. Crim. App., at Knoxville, June 3, 1996).



              The petitioner also argues that the application of the statute of

limitations to his case denies him due process of law and that the post-conviction

court erred when it did not find an exception to the statute of limitations in this case.

In Burford v. State, 845 S.W.2d 204 (Tenn.1992), our supreme court carved out a

narrow exception to the three-year statute of limitations. Burford had been

sentenced as a habitual criminal to a term of life imprisonment based upon five prior

robbery convictions. Id. at 205. He filed a timely post-conviction petition, alleging

that certain of his five prior robbery convictions were constitutionally infirm because

he had not been advised of his right against self-incrimination before entering his

plea; he was granted post-conviction relief from these convictions. Id. Later, after

the three-year statute of limitations had expired, Burford filed a petition to set aside

the finding of habitual criminality on the basis that there was no longer a sufficient

number of prior felony convictions to qualify him for the enhanced punishment. Id.

at 206. Our supreme court ruled that the statute of limitations, while generally

compliant with constitutional due process, violated Burford's specific due process

rights:

              If consideration of the petition is barred, Burford will be
              forced to serve a persistent offender sentence that was
              enhanced by previous convictions that no longer stand.
              As a result, Burford will be forced to serve an excessive
              sentence in violation of his rights under the Eighth
              Amendment to the U.S. Constitution, and Article I, § 16
              of the Tennessee Constitution, which, by definition, are
              fundamental rights entitled to heightened protection.

Burford, 845 S.W.2d at 209.



              In Sands v. State, 903 S.W.2d 297 (Tenn.1995), our supreme court

                                            6
further defined how to apply the Burford test. A court must:

                (1) determine when the limitations period would normally
                have begun to run; (2) determine whether the grounds
                for relief actually arose after the limitations period would
                normally have commenced; and (3) if the grounds are
                "later arising," determine if, under the facts of the case, a
                strict application of the limitations period would effectively
                deny the petitioner a reasonable opportunity to present
                the claim. In making this final determination, courts
                should carefully weigh the petitioner's liberty interest in
                "collaterally attacking constitutional violations occurring
                during the conviction process," against the State's
                interest in preventing the litigation of "stale and
                fraudulent claims."

Sands, 903 S.W.2d at 301 (citations omitted) (quoting Burford, 845 S.W.2d at 207,

208).



                By the use of these guidelines, we have first determined that the

statute of limitations for this petitioner's convictions expired in 1989.1 The

petitioner's argument fails at the second step. He argues his pleas were involuntary.

The right to the voluntariness of a guilty plea was established well before petitioner's

convictions were entered. See, e.g., Boykin v. Alabama, 395 U.S. 238 (1969).

Thus, he has not established that a constitutional right arose after his convictions

became final or after his statute of limitations expired. To the extent the petitioner

argues his pleas are invalid because he was not advised that the conviction could

be used to enhance a subsequent punishment, that portion of the advice litany is not

constitutionally required. Our supreme court has ruled that the "advice [that the

conviction may be used to enhance a future sentence] ... is not based upon any

constitutional provision, federal or state... such omissions have no validity on the ...

post-conviction proceeding." State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).




        1
         Th e thre e-year statu te of lim itations was pas sed in 198 6. See Tenn. Code Ann. § 40-30-102
(repealed 1995 ).

                                                   7
              This court is compelled to comment on the 1983 guilty plea. The

petition states that this conviction occurred on "February 28, 1993." The state did

not file an answer indicating when the conviction occurred. The trial court's order

dismissing the petition also did not indicate the date of conviction. Our court,

however, takes judicial notice of the fact that the conviction in this case occurred on

February 28, 1983, and that the petition contains a typographical error. "The courts

may take judicial notice of the court records in an earlier proceeding of the same

case and the actions of the courts thereon." Delbridge v. State, 742 S.W.2d 266,

267 (Tenn. 1987). In addition, appellate courts are authorized to supplement

incomplete records. Tenn. R. App. P. 24(e). Accordingly, we have supplemented

the record with a copy of the judgment and conclude that the conviction did, in fact,

become final on February 28, 1983.



              If judgment had been entered on February 28, 1993, as alleged, the

petitioner would have filed a timely petition. In Betsy Jane Pendergrast v. State, No.

01C01-9607-CC-00289, slip op. at 3 (Tenn. Crim. App., at Nashville, May 16, 1997),

this court ruled that the new Post-Conviction Act gives individuals whose statute of

limitations had not yet run a year from the effective date of the new Act until May 10,

1996.



              We emphasize that the state has an obligation to file portions of the

record "that are material to the questions raised therein." Tenn. Code Ann. § 40-30-

208(b) (1996 Supp.). "It is the role of the State, and not the court, to file those parts

of the record that are material to the questions raised in the petition." Allen v. State,

854 S.W.2d 873, 875 (Tenn. 1993).



              We affirm the judgment of the trial court.


                                            8
    PER CURIAM

    Joe B. Jones, Presiding Judge
    Gary R. Wade, Judge
    John H. Peay, Judge




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