           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT JACKSON
                                   Assigned on Briefs October 3, 2000

                        JEFFREY BIVENS v. STATE OF TENNESSEE

                      Direct Appeal from the Circuit Court for Madison County
                              No. C99-191, Roy B. Morgan, Jr., Judge



                        No. W1999-01028-CCA-R3-PC - Filed November 3, 2000


Jeffrey Bivens appeals from the Madison County Circuit Court’s denial of his petition for post-
conviction relief. Although the petition was filed outside the one year limitations period, the post-
conviction court excused the “late-filed” petition “in the interest of justice.” Following a hearing
upon the merits of the petition, the court denied post-conviction relief. Because the petition was
time-barred, the post-conviction court was without jurisdiction to conduct a hearing on the merits.
For this reason, dismissal of the petition is affirmed.


                   Tenn. R. App. P. 3; Judgment of the Circuit Court is Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH, J. and ALAN E.
GLENN, J., joined.

Scott G. Kirk, Jackson, Tennessee, for the appellant, Jeffrey Bivens.

Paul G. Summers, Attorney General and Reporter, Michael Moore, Solicitor General, Lucian D.
Geise, Assistant Attorney General, James G. (Jerry) Woodall, District Attorney General, and Al
Earls, Assistant District Attorney General, for the appellee, State of Tennessee.


                                                        OPINION

        The appellant, Jeffrey Bivens, appeals the dismissal of his petition for post-conviction relief
by the Circuit Court of Madison County. The appellant was convicted by a jury of two counts of first
degree murder and received consecutive sentences of life without parole on each count.1 His


       1
           The facts leading to the appellant's convictions as recited in this court's opinion on direct ap peal revea l that:
                  The appellant resided with the two victims, his father and grandmo ther. His
                  grandmother was 81 and physically disabled. The appellant had a history of drug
                  abuse. He was prohibited from driving and subject to a c urfew. He re sented his
                                                                                                              (continued ...)
conviction was affirmed on direct appeal to this court. See State v. Bivens, 967 S.W.2d 821 (Tenn.
Crim. App. 1996), perm. to appeal denied, (Tenn. 1997). A pro se petition seeking post-conviction
relief was filed by the appellant on May 17, 1999. The appellant collaterally attacked his murder
convictions upon numerous grounds including ineffective assistance of counsel, coerced confessions,
Brady violations, and judicial misconduct. The State moved to dismiss the petition as barred by the
one year statute of limitations. The appellant requested the court excuse the late-filing of the petition
explaining that the late-filing was due to appellate counsel’s failure to notify him of the supreme
court’s denial of his Rule 11 application. The post-conviction court “excuse[d] the statute of
limitations in this case”2 and proceeded to hear the petition on its merits. On October 15, 1999, the
post-conviction court denied the appellant relief, finding that the appellant “failed to meet his burden
of proof as to any and all issues raised in the petition.” In this appeal of right, the single issue
presented by the appellant for our review is whether the appellant was denied the effective assistance
of counsel at trial.3 We conclude, however, that the dispositive issue is whether the petition is time-
barred.

       Finding the petition barred by the statute of limitations, we affirm the post-conviction court’s
dismissal.

         Pursuant to Tenn. Code Ann. § 40-30-202(a)(1997),
         a person in custody under a sentence of a court of this state must petition for
         post-conviction relief within one year of the date of the final action of the highest
         state appellate court to which an appeal is taken or, if no appeal is taken, within one

         1
          (...continued)
                   restrictions.
                   In July of 1993, the appellant called his employer. His employer informed him that
                   he was laid off. Later that da y, the appellan t killed both his fath er and his
                   grandmo ther. Both v ictims were: (1 ) beaten with a hammer; (2 ) stabbed multiple
                   times; and (3) slashed a cross the thro at. The ap pellant took money from his fath er's
                   billfold and his grandmother's purse. He stole a VCR and his father's car. He then
                   purchase d "crack " cocaine and "go t high."
State v. Bivens, 967 S.W .2d 821 , 823 (T enn. Crim. A pp. 199 6), perm. to appeal denied, (Tenn. 1997).

         2
           Specifically, in excusing the late-filed petition, the trial court stated
         Many times we see petitions filed years and some times filed three and four . . . years past the cutoff.
         I understand the State’s argument, but I feel like under the circ umstances, in th e interest of justice , this
         is not one that w as tremend ously delayed , and coun sel is coming in and been very candid that they feel
         like from their records that they did not send out notice to Mr. Bivens as to the decision rendered by
         the higher co urt.

         I’m going to a llow the petition for post-con viction to pro ceed . . . .


         3
          On appeal, the appellant alleges as grounds for ineffectiveness trial counsel's failure (1) to challenge the
suppression of his statement on direct appeal; (2) to object to the State's failure to disc lose exculp atory eviden ce; (3) to
obtain expert witnesses; (4) to make timely objections to the introduction of evidence; (5) to object to the bias of the trial
court; and (6 ) to adequ ately confer with th e appellan t in prepara tion for trial.

                                                              -2-
        year of the date on which judgment became final. The statute of limitations shall not
        be tolled for any reason, including any tolling or saving provision otherwise available
        at law or equity. Time is of the essence of the right to file a petition for post-
        conviction relief or motion to reopen . . . , and the one-year limitations period is an
        element of the right to file such an action and is a condition upon its exercise.
        Except as specifically provided . . . the right to file a petition for post-conviction
        relief . . . shall be extinguished upon the expiration of the limitations period.

Tenn. Code Ann. § 40-30-202(a)(emphasis added). Indeed, beyond the one year statute of
limitations, the trial court lacks jurisdiction to hear a petition unless one of three limited exceptions
apply. 4 See Tenn. Code Ann. § 40-30-202(b). These exceptions are statutorily limited to the
following:

        (1) The claim in the petition is based upon a final ruling of an appellate court
        establishing a constitutional right that was not recognized as existing at the time of
        trial, if retrospective application of that right is required. . . .

        (2) The claim in the petition is based upon new scientific evidence establishing that
        such petitioner is actually innocent of the offense or offenses for which the petitioner
        was convicted; or

         (3) The claim asserted in the petition seeks relief from a sentence that was enhanced
         because of a previous conviction and such conviction in the case in which the
         claim is asserted was not a guilty plea with an agreed sentence, and the previous
         conviction has subsequently been held to be invalid. . . .

Tenn. Code Ann. § 40-30-202(b)(1), -202(b)(2), -202(b)(3) (emphasis added). Additionally, the
limitations period may also be tolled where application of the one year period would offend
principles of due process. See Burford v. State, 845 S.W.2d 204, 208-209 (Tenn. 1992).

        Although the Post-Conviction Procedure Act provides several limited exceptions to the
one-year statute of limitations, none of them are applicable to the present case. See Tenn. Code
Ann. § 40-30-202(b). Moreover, application of the statute of limitations in this case does not create
a procedural trap offending due process. See Burford, 845 S.W.2d at 208-209. See, e.g., State v.
Phillips, 904 S.W.2d 123, 124 (Tenn. Crim. App. 1995)(failure to comply with the statute of
limitations, even when based upon erroneous advice from an attorney, does not provide an
exception).




        4
          W e acknowledge that the Post-Conviction Procedure Act is not a constitutionally mandated procedure.
Accordingly, the legislature may properly impose limitations upon the time in which the cause of action arising under
the act must be brought.

                                                        -3-
        The judgment in the present case became final on July 7, 1997. Thus, the appellant had until
July 7, 1998, to file his petition. The petition, however, was not filed until May 17, 1999, well
beyond the applicable statute of limitations. Accordingly, the trial court was without jurisdiction to
hear the petition and determine its merits. Moreover, the Post-Conviction Act requires that a petition
filed outside the applicable limitations period be summarily dismissed without conducting an
evidentiary hearing. See Tenn. Code Ann. § 40-30-206(b) (1997); see also Tenn. Sup. Ct. R. 28,
§ 6(B)(4)(c).

        Accordingly, the post-conviction court lacked jurisdiction to consider the appellant’s petition
on its merits and was required by statute to dismiss the petition. Although we reach the same result
albeit through different means, we affirm the judgment of the post-conviction court denying the
appellant post-conviction relief.




                                                       ___________________________________
                                                       DAVID G. HAYES, JUDGE




                                                 -4-
