         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs June 2, 2009

                 OLIVER J. HIGGINS v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Hardin County
                           No. 6755 C. Creed McGinley, Judge



                 No. W2008-02693-CCA-R3-PC - Filed November 20, 2009


A Hardin County jury convicted Petitioner of several drug-related crimes. Petitioner unsuccessfully
appealed these convictions. State v. Oliver Higgins, Jr., No. 5, 1991 WL 153021, (Tenn. Crim.
App., at Jackson, Aug. 14, 1991), perm. app. denied, (Tenn. Dec. 30, 1991). These convictions
were later used to enhance his sentence in the Federal courts. Petitioner filed a petition for post-
conviction relief to attack these convictions. The post-conviction court treated the petition as a
motion to reopen a prior petition for post-conviction relief and dismissed the petition. On appeal,
Petitioner argues that the post-conviction court erred in dismissing his petition. We conclude that
the appeal is not properly before this Court because Petitioner is required by statute to file an
application for permission to appeal as opposed to a notice of appeal as filed. Therefore, we dismiss
this appeal.

                 Tenn. R. App. P. 3 Appeal as of Right; Appeal is Dismissed.

JERRY L. SMITH , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
CAMILLE R. MCMULLEN , JJ., joined.

Oliver J. Higgins, Pro Se, Pine Knot, Kentucky.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant Attorney
General; Robert Radford, District Attorney General; and Ed N. McDaniel, Assistant District
Attorney General; for the appellee, State of Tennessee.



                                            OPINION

       A Hardin County jury convicted Petitioner of possession with intent to sell more than thirty
grams of a substance containing cocaine, possession with intent to sell marijuana, possession of drug
paraphernalia, and sale of marijuana. Oliver Higgins, Jr., 1991 WL 153021, at *1. The trial court
sentenced Petitioner to an effective sentence of fifteen years as a Range II, multiple offender. Id.
Appellant was unsuccessful on his appeal from his convictions to this Court. Id. at *4.

        On October 29, 2008, Petitioner filed a Petition for Post-conviction Relief asserting that he
was afforded ineffective assistance of both trial and appellate counsel, that he was actually innocent
of the charges, and that new evidence exists. Petitioner stated that he was attempting to challenge
the validity of these convictions because they were used by the Federal courts to impose a mandatory
life sentence for violation of the Federal Controlled Substance Statutes.

        On November 13, 2008, the trial court filed an order dismissing Petitioner’s petition. In the
order, the trial court treats the petition as a motion to reopen his petition. The trial court dismissed
the petition on the basis that it was time-barred under the statute. Petitioner filed a notice of appeal
on November 26, 2008.

                                             ANALYSIS

        Petitioner argues that the post-conviction court erred in dismissing his petition. The State
argues that this Court does not have jurisdiction to entertain this appeal because the notice of appeal
was filed late and, in the alternative, that the petition is time-barred.

       As stated above, the trial court treated the petition as a motion to reopen. Tennessee Code
Annotated section 40-30-117 sets out the procedure for defendants to file a motion to reopen and to
appeal from the denial of such motion. Tennessee Code Annotated section 40-30-117(c) states:


        If the motion is denied, the petitioner shall have ten (10) days to file an application
        in the court of criminal appeals seeking permission to appeal. The application shall
        be accompanied by copies of all the documents filed by both parties in the trial court
        and the order denying the motion.


        As the State points out, Petitioner’s notice of appeal was filed more than ten days after the
trial court’s entry of the judgment. The trial court filed its order on November 13, 2008, which was
a Thursday. November 23, 2008, ten days later, was a Sunday. Therefore, Under Tennessee Rules
of Appellate Procedure 21(a), the next day, Monday, November 24, 2008, would have been the
deadline for filing his permission to appeal. Petitioner was incarcerated at the time he filed his
notice of appeal. Under Rule 28, § 2(g) of the Supreme Court Rules covering Post-conviction
procedure, if a pro se petitioner is incarcerated and the papers required are not received in a timely
manner, the “filing shall be timely if the papers were delivered to the appropriate individual at the
correctional facility within the time fixed for filing.” The date of service on Petitioner’s notice of
appeal was signed November 24, 2008. Therefore, we consider Petitioner’s notice of appeal to have
been filed within the ten days required by Tennessee Code Annotated section 40-30-117(c).



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        We now turn to the issue of whether Petitioner’s notice of appeal could be considered an
application for permission to seek appeal. In this case, Petitioner filed a “Notice of Appeal” which
included the date and judgment from which he was appealing, but it did not include the issues to be
raised or the reasons why the Court should grant review. Based upon the title of the pleading filed,
the document would not be considered an application seeking permission to appeal as required by
Tennessee Code Annotated section 40-30-117(c).

         Our supreme court faced a similar situation in Graham v. State, 90 S.W.3d 687 (Tenn. 2002).
In Graham, the petitioner filed a motion to reopen his post-conviction petition based upon Apprendi
v. New Jersey, 530 U.S. 466 (2000). As in the case at hand, the petitioner filed a document entitled
“Notice of Appeal” as opposed to an application seeking permission to appeal as required by the
statute.1 After pointing out that the statute did not specify what constitutes an application for
permission to appeal, the Graham court stated the following: “In general, the contents of an
application for appeal must include the date and judgment from which the petitioner seeks review,
the issue which the petitioner seeks to raise, and the reasons why the appellate court should grant
review.” Graham, 90 S.W.3d at 691. The court held that the petitioner’s notice of appeal should
be treated as an application for permission to appeal because the pleading included a reference to the
trial judge’s order and the issue to be raised. Id.

        The same cannot be said of Petitioner’s Notice of Appeal in the case at hand. Unlike the
notice of appeal in Graham, Petitioner’s notice of appeal does not include any information regarding
the issue to be raised or any reasons why this court should grant review. For this reason, this appeal
must be dismissed.

                                            CONCLUSION

       For the foregoing reasons, we dismiss Petitioner’s appeal for failure to properly file an
application for permission to appeal.




                                                 ___________________________________
                                                 JERRY L. SMITH, JUDGE




        1
        At the time Graham was decided, Tennessee Code Annotated section 40-30-117(c) was found at Tennessee
Code Annotated section 40-30-217(c).

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