         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs December 6, 2005

                   JOHNNY SHIELDS v. STATE OF TENNESSEE

                     Direct appeal from the Madison County Circuit Court
                             No. C-03-166    Donald Allen, Judge



                      No. W2004-02625-CCA-R3-PC - Filed March 3, 2006


The Petitioner, Johnny Shields, appeals the post-conviction court’s dismissal of his petition for post-
conviction relief as time-barred. We affirm the judgment of the post-conviction court.

        Tenn. R. App. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which THOMAS T. WOODALL and
ALAN E. GLENN , JJ., joined.

Johnny Shields, pro se, Whiteville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney
General, for the Appellee, State of Tennessee.


                                               OPINION
                                            I. Background

        This case arises from the Petitioner’s filing of a petition for post-conviction relief in the
Madison County Circuit Court. On May 3, 2002, this Court issued an opinion affirming the
Petitioner’s conviction for aggravated sexual battery and modifying his sentences. State v. Johhny
Shields, No. W2001-01554-CCA-R3-CD, 2002 WL 927606, at *1 (Tenn. Crim. App., at Jackson,
May 3, 2002), no Tenn. R. App. P. 11 application filed. The case was not appealed to the Tennessee
Supreme Court. May 12, 2003, one year and nine days after this Court issued its judgment on the
Petitioner’s direct appeal, the Petitioner’s pro se petition for post-conviction relief was filed with the
Madison County Clerk’s Office. The record indicated that because the Petitioner was incarcerated,
the petition for post-conviction relief was delivered to the Madison County Clerk’s Office via the
Tennessee Department of Correction. The space where the Petitioner was supposed to mark the date
that his petition was handed over to the Department of Correction was left blank.
        During the hearing, the Petitioner argued that because he was incarcerated he was not aware
of this Court’s judgment until several days after it had been issued. The Petitioner then contended
that because he was not immediately aware of this Court’s judgment, he should have been granted
extra time to file his petition for post-conviction relief, and, thus, his petition should be deemed
timely. Based on this evidence the post-conviction court found that the petition for post-conviction
relief was not timely filed, and the post-conviction court dismissed the petition with prejudice.

        On appeal, the Petitioner filed a motion with this Court to supplement the record, which was
subsequently granted. The record on appeal was supplemented with the Petitioner’s “Motion to
Designate Additional Portions of the Record,” which was filed subsequent to the post-conviction
hearing. The “Motion to Designate Additional Portions of the Record” includes the Petitioner’s
affidavit stating that Kathy Watson, the mail room clerk at the Hardeman County Correctional
Facility, could support the proposition that the Petitioner had delivered his petition for post-
conviction relief to the Department of Correction on May 2, 2003.

                                             II. Analysis

        On appeal, the Petitioner contends that his petition was in fact filed in a timely manner,
because it was delivered to the Tennessee Department of Correction on May 2, 2003, which was
within the one year statute of limitation. The State argues that evidence to support the Petitioner’s
contention was not presented at the hearing in the post-conviction court and that this Court is bound
by the post-conviction court’s factual findings unless the evidence in the record preponderates
against those findings.

        Under the terms of the Post-Conviction Procedure Act, a petitioner bears the burden of
proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210 (f) (2003).
The credibility of the witnesses and the weight and value afforded to their testimony are
appropriately addressed in the trial court. Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.
1997). On appeal, the burden is on the petitioner to establish that the evidence preponderated against
the findings of the trial judge. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
Otherwise, the findings of fact by the trial court are conclusive. Graves v. State, 512 S.W.2d 603,
604 (Tenn. Crim. App. 1973).

        Under Tennessee Code Annotated section 40-30-102 (a) (2003), a petitioner “must petition
for post-conviction relief . . . within one (1) year of the date of the final action of the highest state
appellate court to which an appeal is taken . . . .” However, according to Tennessee Supreme Court
Rule 28, section 2 (G), and Tennessee Rules of Criminal Procedure 49 (c), if a petition is “prepared
by or on behalf of a pro se litigant incarcerated in a correctional facility and [is] not received by the
clerk of the court until after the time fixed for filing, filing shall be timely if the papers were
delivered to the appropriate individual at the correctional facility within the time fixed for filing.”

       We begin our analysis by noting that information in the supplemental record, if true, appears
to support the Petitioner’s assertion that the petition for post-conviction relief was delivered to the


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Hardeman County Correctional Facility mail clerk on May 2, 2003, which was within the one year
statute of limitations. Because the Petitioner is currently in the custody of the Tennessee Department
of Correction, he is entitled to have the statute of limitations for his post-conviction petition
measured from the date of the final action of the highest state appellate court to which his appeal was
taken to the date that he delivered the petition to the appropriate individual at the correctional
facility. See Tenn. Sup. Ct. R. 28, § 2 (G); Tenn. R. Crim. P. 49 (c). In this case, the final action
of the highest state appellate court occurred on May 3, 2002, when this Court issued its opinion on
the Petitioner’s direct appeal, and according to the affidavit used to supplement the record, the date
that the petition was delivered to the appropriate individual at the correctional facility was May 2,
2003.

        Although the affidavit submitted to supplement the record does purport to present evidence
supporting the Petitioner’s assertion that his petition for post-conviction relief was filed in a timely
fashion, that evidence cannot properly be considered by this Court. The Petitioner’s motion to
supplement the record was granted under the assumption that the evidence that was to be presented
to supplement the record had been part of the record at the post-conviction proceeding, but for some
reason had not been certified to this Court as part of the official record on appeal. However, that was
not the case. The affidavit sent to this Court with the Petitioner’s appeal was not part of the record
considered by the post-conviction court, thus, we cannot consider it when determining whether the
facts of the case preponderate against the post-conviction court’s findings. In light of this, it is this
Court’s determination that the evidence presented at the post-conviction hearing does not
preponderate against the post-conviction court’s findings, and the Petitioner is not entitled to relief
on this issue.

                                           III. Conclusion

        In accordance with the foregoing, we conclude that the post-conviction court committed no
reversible error. Therefore, the judgement of the post-conviction court is affirmed.



                                                         _____________________________________
                                                         ROBERT W. WEDEMEYER, JUDGE




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