            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                       AT JACKSON

                               MAY 1997 SESSION



EDWARD EARL JONES,                 *      C.C.A. # 02C01-9607-CR-00226

             Appellant,            *      SHELBY COUNTY

VS.                                *      Hon. Arthur T. Bennett, Judge

STATE OF TENNESSEE,                *      (Post-Conviction)

             Appellee.             *
                                                               FILED
For Appellant:                            For Appellee:

Edward Earl Jones, pro se                 Charles W. Burson August 27, 1997
#085890                                   Attorney General & Reporter
Cold Creek Correctional Facility
P.O. Box 1000                             M. Allison Thompson
Henning, TN 38041-1000                    Counsel for the StateCecil Crowson, Jr.
                                          450 James Robertson Parkway
                                          Nashville, TN 37243-0493 C ourt Clerk
                                                               Appellate


                                          Perry Hayes
                                          Assistant District Attorney General
                                          201 Poplar Avenue
                                          Memphis, TN 38103




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The petitioner, Edward Earl Jones, appeals the trial court's denial of

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

was barred by the statute of limitations.



              We affirm the judgment of the trial court.



              On August 11, 1977, the petitioner was convicted of aggravated rape,

for which he received a life sentence; robbery by the use of a deadly weapon, for

which he received an eight-year sentence; and crime against nature, for which he

received a sentence of not less than eight years nor more than twelve years. This

court affirmed the convictions on direct appeal. Edward Earl Jones v. State, No.

102 (Tenn. Crim. App., at Jackson, Feb. 29, 1980). An application for permission to

appeal to the supreme court was denied July 1, 1980.



              On May 14, 1996, the petitioner filed a post-conviction petition,

challenging the validity of the rape conviction. The petitioner contended that there

were various irregularities regarding the affidavit of complaint, his arrest, and his

preliminary hearing in the General Sessions Court. He also argued that there were

deficiencies in the arraignment, the trial, the instructions to the jury, and the

sentencing procedure.



              The trial court ruled that the petition was barred by the three-year

statute of limitations which had been in effect until repealed on May 10, 1995. See

Tenn. Code Ann. §§ 40-30-102 to -124 (repealed 1995).



              In this appeal, the petitioner also complains that he should have been


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appointed counsel for assistance in his post-conviction claim. He contends that the

district attorney general failed to respond to his petition as required by statute:

              The district attorney general shall represent the state and
              respond by proper pleading on behalf of the state within
              thirty (30) days after receiving notice of the docketing or
              within such time as the court orders.

Tenn. Code Ann. § 40-30-114(a) (repealed 1995).



              Initially, the dismissal of a colorable post-conviction claim, prior to the

1995 amendment, was rarely proper without the appointment of counsel. Swanson

v. State, 749 S.W.2d 731 (Tenn. 1988). If, however, it could be conclusively

determined from the pro se petition that the petitioner is not entitled to relief, a

summary dismissal is not precluded. A time-barred petition is a classic example.

See, e.g., Frederick v. State, 906 S.W.2d 927, 930 (Tenn. Crim. App. 1993) (petition

dismissed without the appointment of counsel when barred by statute of limitations).

Also, the failure of the district attorney general to participate would not warrant a

reversal unless the petitioner was prejudiced thereby. See Brown v. State, 445

S.W.2d 669 (Tenn. Crim. App. 1969). More importantly, the amendments to the

Post-Conviction Procedure Act, effective May 10, 1995, implemented substantial

changes. See Tenn. Pub. Act 207, §§ 1 and 3. Now, the trial judges must give

preliminary consideration to each petition. Tenn. Code Ann. § 40-30-206 (1996

Supp.). Because this petition was filed May 14, 1996, the amended act would apply

and, unless the claims fall within one of the statutory exceptions, a summary

dismissal without the appointment of counsel would be proper:

              If it plainly appears from the face of the petition, any
              annexed exhibits or the prior proceedings in the case that
              the petition was not filed in the court of conviction or
              within the time set forth in the statute of limitations, or
              that a prior petition was filed attacking the conviction and
              was resolved on the merits, the judge shall enter an
              order dismissing the petition....

Tenn. Code Ann. § 40-30-206(b) (1996 Supp.).

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              Here, the petitioner has made no claims that would qualify as an

exception to the statute of limitations. Tenn. Code Ann. § 40-30-202 (1996 Supp.);

see Burford v. State, 845 S.W.2d 204 (Tenn. 1992). Thus, under any interpretation

of the 1995 Act, this petition is barred by the statute of limitations. See Arnold

Carter v. State, No. 03C01-9509-CC-00270 (Tenn. Crim. App., at Knoxville, July 11,

1996), appeal granted, (Tenn., Dec. 2, 1996).



                                          __________________________________
                                          Gary R. Wade, Judge

CONCUR:



______________________________
John H. Peay, Judge



_______________________________
Thomas T. Woodall, Judge




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