         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE               FILED
                         OCTOBER SESSION, 1998          February 18, 1999

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

GUILLERMO MATIAZ JUAN,              )   C.C.A. NO. 03C01-9708-CR-00318
                                    )
           Appe llant,              )
                                    )   HAMILTON COUNTY
V.                                  )
                                    )
                                    )   HON. REBECCA J. STERN, JUDGE
STATE OF TENNESSEE,                 )
                                    )
           Appellee.                )   (POST -CON VICTIO N)



FOR THE APPELLANT:                      FOR THE APPELLEE:

GUIL LER MO MATIAZ JUAN , pro se        JOHN KNOX WALKUP
Southe astern T ennes see Sta te        Attorney General & Reporter
Region al Corre ctional Fa cility
Route 4, Box 600                        MICH AEL J. F AHEY , II
Pikeville, TN 37367-9243                Assistant Attorney General
                                        2nd Floor, Cordell Hull Building
                                        425 Fifth Avenue North
                                        Nashville, TN 37243

                                        WILL IAM H. C OX, III
                                        District Attorney General

                                        STAN LANZO
                                        Assistant District Attorney General
                                        600 Market Street, Suite 310
                                        Chattanooga, TN 37402




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                       OPINION
               The Petitioner, Guillermo Matiaz Juan, appeals as of right from the trial

court’s order denying his petition for post-conviction relief. Petitioner was charged

in the Hamilton C ounty Crimina l Court with first degree premeditated murder, felony

murder, aggravated burglary, and theft. Pursuant to a plea agreement, Petitioner

pled guilty to the lesser offense of second degree murder, and the remaining

charges were dis misse d. The plea to second degree murder was taken on October

21, 1991. There was no direct appeal from this plea. Petitioner filed his petition for

post-conviction relief on June 10, 1997. The trial court dismissed the petition on June

25, 1997 on the basis that the petition was barred by the applicable statute of

limitations. W e affirm the judgm ent of the tria l court.



               Relying upon Burford v. State, 845 S.W.2d 204 (Tenn. 1992), Petitioner

asserts that his rights to due process were violated by application of the statute of

limitations. Petitioner, in essence, argues that the statute of limitations at Tennessee

Code Annotated section 40-30-102 (Repealed May 1, 1995) is not ap plicab le to him

because he canno t read, write , or speak the E nglish languag e.          Specifically,

Petitione r sets forth in his brief:


         Since he [Petitioner] cannot speak, read, or write the English language,
         his failure to comply with the three-year statute of limitations was
         intrinsically beyond his capabilities.


               Petitioner also relies upon Wa tkins v. State , 903 S.W.2d 302 (Tenn.

1995).     In Watkins, our sup reme c ourt held that application of the statute of

limitations where a petitioner is m entally inco mpete nt during the period the statute




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is running would violate constitutional due pro cess. Id. at 305-06 (citing Burford, 845

S.W .2d at 205, 208 ).



                Howeve r, in a factua l situation m ore akin to the case sub judice, our

court in Phillips v. Sta te, 890 S.W.2d 37 (Tenn. Crim. App. 1994), held that the

statute of limitatio ns wa s not to lled be caus e the p etitione r was in carce rated in

another state. Specifically, our court stated:


         The first issue argued is that the statute of limitations should not be
         applied to Defen dant’s po st-convictio n petition. The Defendant argues
         that he was in custody in Alabama when the statute ran. He argues
         that the sta tute of lim itations shou ld not apply to his petition because he
         was not and is not a resident of the state of Tennessee, he had no
         access to a law library which contained Tennessee law, he had no
         access to an app ointed law yer with knowledge of Tennessee law, and
         he was ‘effectively denied assistance of other in mate s kno wledg eable
         of the laws’ of Tennessee.

Phillips, 890 S.W .2d at 38 (em phasis add ed).



                In an unre lated cas e, State v. Phillips, 904 S.W.2d 123, 124 (Tenn.

Crim. App. 1995), our court more recently noted that “a petitioner’s ignorance of the

existence of the statute of limitation, even when alleged to stem from a n attorn ey’s

negligent failure to render advice to the petitioner, does not toll the running of the

statute.”     (Citing Raym ond D ean W illis v. State, No. 01C01-9211-CR-00359,

Davidson Coun ty (Tenn . Crim. A pp., Oct. 2 1, 1993 ), perm. app. denied (Tenn.

1994).



                It appears the law is well settled that mere ignorance of the law

concerning the statute of limitations , or even th e existenc e of the sta tute of




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limitations, by whatever means (other than menta l incomp etence ), does n ot rise to

the status of being vio lative of con stitutional du e proce ss.



               According ly, the judgment of the trial court summa rily dismissing the

petition for post-conviction relief because it was filed outside the statute of limitations

is affirmed.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Presiding Judge


___________________________________
DAVID H. WELLES , Judge




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