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


                                                         FILED
JOHNNY LEE MUKES,           )                       September 09, 1997
                            )   No. 02C01-9610-CR-00320
      Appellant             )                       Cecil Crowson, Jr.
                            )   SHELBY COUNTY        Appellate C ourt Clerk
vs.                         )
                            )   Hon. JOHN P. COLTON, JR., Judge
STATE OF TENNESSEE,         )
                            )   (Post-Conviction)
      Appellee              )



For the Appellant:              For the Appellee:

JOHNNY LEE MUKES, PRO SE        CHARLES W. BURSON
Reg. No. 12375-076              Attorney General and Reporter
F.C.I. Memphis
P. O. Box 34550 (Beale-A)       MICHAEL J. FAHEY, II
Memphis, TN 38184-0550          Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                WILLIAM GIBBONS
                                District Attorney General

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



OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                 OPINION



         The appellant, Johnny Lee Mukes, appeals the order of the Shelby

County Criminal Court dismissing his pro se petition for post-conviction relief. In

this appeal, the appellant raises numerous issues which can collectively be

summarized as challenging the trial court's ruling that the petition for post-

conviction relief is time barred.1



         After a review of the record, we affirm the lower court's denial of post-

conviction relief.



         Between March 1, 1976, and January 12, 1988, the appellant entered

guilty pleas to and was convicted of numerous felonies in the State of

Tennessee.2 In 1990, the appellant was convicted in the federal district court for

the Western District of Tennessee of possession of a controlled substance with

intent to distribute, carrying a firearm in a drug trafficking offense, and being a

felon in possession of a firearm. His prior state convictions, the subject of this

appeal, were subsequently used to enhance the sentences imposed for these

federal convictions.3 The appellant is currently incarcerated at the Federal

         1
          Although the post-conviction petition included in the record before this court only attacks
the appellant's 1 984 conviction s for aggravate d assault, the argum ent presented by both parties in
their respe ctive briefs e nco m pas ses all prior felony conviction s of th e ap pellant, infra note 2, used
to enhance his sentences for his subsequent federal convictions. The trial court noted that each
of the appellant's prior state convictions were challenged in separate post-conviction petitions, but
were assigned the same docket num ber when filed. Accordingly, the court addressed the
appellant's c ollective challenges in its denial.

         2
         The federal presentence report included in the record indicates that the following prior
felony convictions of the appellant were used for federal sentencing enhancement purposes:

         03/01/76          Robb ery
         04/24/80          Carrying a Pistol
         07/24/84          Ag gravate d Assault
         07/24/84          Ag gravate d Assault
         03/05/87          Possession Controlled Substance w/ Intent
         03/05/87          Possession Controlled Substance w/ Intent
         03/05/87          Convicted F elon in Posses sion of Firearm
         01/12/88          Possession Controlled Substance w/ Intent

         3
          In accordance with Federal Sentencing Guideline, the appellant received three criminal
history points for his 1976 conviction for robbery; two criminal history points for his 1980 conviction
for carrying a pisto l; three c rim inal histo ry points for his 198 4 co nviction s for agg rava ted assa ult;

                                                      2
Correctional Institution in Memphis, Tennessee. On July 9, 1996, the appellant

filed a pro se petition for post-conviction relief alleging that his guilty pleas

entered for his respective state convictions were not knowingly and voluntarily

entered.4 On July 30, 1996, the trial court, without an evidentiary hearing,

dismissed the petition as being barred by the statute of limitations.



         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 July 1, 1986, for

convictions entered prior to this date, on April 5, 1987, for his convictions for

possession of a controlled substance with intent and felon in possession of a

firearm, and on February 12, 1988, for his conviction for possession of a

controlled substance with intent. See Tenn. Code Ann. § 40-30-102 (repealed

1995); see also Passarella v. State, 891 S.W.2d 619, 624 (Tenn. Crim. App.),

perm. to appeal denied, (Tenn. 1994). Thus, the appellant had three years from

these respective dates in which to file a cognizable claim for post-conviction

relief.5 Tenn. Code Ann. § 40-30-102. The petition in the instant case was filed

on July 9, 1996, well past the three year statute of limitations; thus, the appellant

is "barred" from seeking post-conviction relief.



three criminal history points for his 1987 convictions for possession with intent to sell and being a
felon in possession of a firearm; and three criminal history points for his 1988 conviction for
possession with intent to sell. 28 U.S.C.A. § 994(a)(1) (W est 1993); Federal Sentencing
Guidelines §§ 4A 1.2 (1995).

         4
           The appellant alleges that his guilty pleas failed to comply with the constitutional
m andates of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969), and State v. Mackey, 553
S.W .2d 337 (Tenn. 1977). Specifically, he contends that he was not informed that the resulting
con victions from these gu ilty pleas co uld be con sidered for su bse que nt senten cing enh anc em ent.
Eve n if the a ppe llant's claim was not tim e ba rred, he would not have a cognizable claim for po st-
con viction re lief. Boykin requires the inte ntion al relinqu ishm ent or abandonm ent of the accused's
right ag ainst self-inc rim ination, the righ t to confront one's accu sers, and the right to a trial by jury.
Id. The allegation made by the appellant, however, suggests a violation of the mandates of
Mackey, 553 S.W .2d at 341 and State v. McClintock, 732 S.W .2d 268, 273 (Tenn. 1987), not
Bo ykin . Fa ilure to give advice not required by Boykin , i.e.,failure to inform the accused that the
resulting judgment of conviction could be used in the future to enhance punishment for
subsequent convictions, is not a proper ground for post-conviction relief because the omission
doe s no t, by itself, rise to the level of cons titutional error. See Ha tm aker v. State, No. 03C01-
950 6-C R-0 016 9 (T enn . Crim . App . at Knoxville, Oct. 18, 1996), perm. to appeal denied, (Apr. 14,
199 7) (citing Tenn . Code A nn. § 40-3 0-10 5; State v. Prince, 781 S.W .2d 846. 853 (T enn. 1989);
State v. Neal, 810 S.W .2d 131, 140 (T enn. 1991)).

         5
          Th e ap pellant had until July 1, 1989 ; April 5, 1990 ; and Jan uary 13, 1991, re spe ctively, to
file an appro priate petition for post-conviction relief.

                                                      3
       Nonetheless, the appellant makes several arguments in support of his

position that his petition is not time-barred. First, the appellant contends that he

was not "in custody" at the time of filing, and, therefore, the three year statute of

limitations does not apply to him. A person confined to a federal penitentiary is

considered "in custody" within the meaning of Tenn. Code Ann. § 40-30-102 if

the possibility exists that a state conviction has placed a restraint on his liberty.

See Passarella, 891 S.W.2d at 622. The appellant's Tennessee convictions

were subsequently used to enhance his current federal sentence, and, thus,

placed a "restraint" upon his liberty. This issue is without merit.



       Next, the appellant contends that, due to his confinement in the federal

correction facility, he was "without access to the Tennessee Code Annotated,"

therefore, he was unaware of the three year limitation period. Lack of knowledge

does not excuse late filings. Skinner v. State, No. 02C01-9403-CC-00039 (Tenn.

Crim. App. at Jackson, July 13, 1994), perm. to appeal denied, (Tenn. Oct. 10,

1994) (citing Willis v. State, No. 01C01-9211-CR-00359 (Tenn. Crim. App. at

Nashville, Oct. 21, 1993), perm. to appeal denied, (Tenn. Mar. 7, 1994)). This

contention is also without merit.



       We also reject the appellant's argument that the new Post-Conviction

Procedure Act, effective May 10, 1995, grants an additional one year period, until

May 10, 1996, to file a post-conviction petition. A consensus of this court agrees

that the new act does not revive previously time-barred post-conviction relief

claims. See, e.g., Wolfenbarger v. State, No. 03C01-9603-CC-00124 (Tenn.

Crim. App. at Knoxville, Apr. 1, 1997); Carter v. State, No. 01C01-9511-CC-

00398 (Tenn. Crim. App. at Nashville, Feb. 13, 1997); Pendleton v. State, No.

01C01-9604-CR-00158 (Tenn. Crim. App. at Nashville, Feb. 13, 1997); Blake v.

State, No. 03C01-9603-CR-00110 (Tenn. Crim. App. at Knoxville, Feb. 12,

1997); Koprowski v. State, No. 03C01-9511-CC-00365 (Tenn. Crim. App. at


                                           4
Knoxville, Jan. 28, 1997). But see Carter v. State, No. 03C01-9509-CC-00270

(Tenn. Crim. App. at Knoxville, July 11, 1996), perm. to appeal granted, (Tenn.

Dec. 2, 1996). Even though the instant petition was filed after the effective date

of the new Act, the applicable three year statute of limitations barred the

appellant post-conviction relief prior to May 10, 1995. The 1995 Act will not

revive a claim which is already time-barred.



       Finally, we summarily reject the appellant's contentions that (1) application

of the three year statute of limitations to his pre-1986 convictions is

unconstitutional, see State v. Masucci, 754 S.W.2d 90 (Tenn. Crim. App. 1988);

and (2) the three year statute of limitations procedurally denied him his

constitutional rights because he was unaware of his ground for post-conviction

relief, see Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1996).



       Accordingly, we affirm the judgment of the trial court and hold that the

appellant's petition for post-conviction relief is time-barred by the applicable three

year statute of limitations.




                                   ____________________________________
                                   DAVID G. HAYES, Judge




CONCUR:



_______________________________
JERRY L. SMITH, Judge



______________________________

                                          5
THOMAS T. WOODALL, Judge




                           6
