        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs February 5, 2013

              BRUCE L. ROBINSON v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Lauderdale County
                      No. 6484    Joseph H. Walker, III, Judge


                  No. W2012-01401-CCA-R3-PC - Filed May 2, 2013


The petitioner, Bruce L. Robinson, appeals the dismissal of his petition for post-conviction
relief as time-barred, arguing that the United States Supreme Court’s recent holding in
Missouri v. Frye , __ U.S. __, 132 S. Ct. 1399 (2012), established a new constitutional right
that did not exist at the time of his guilty pleas, thereby requiring retroactive application.
Following our review, we affirm the judgment of the trial court summarily dismissing the
petition as time-barred.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

Bruce L. Robinson, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Julie K. Pillow, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

      On June 9, 1999, the petitioner pled guilty to two counts of first degree felony murder,
two counts of attempted first degree murder, and one count of especially aggravated burglary
and was sentenced to an effective term of life imprisonment. No direct appeal was filed.

      On June 11, 2012, the petitioner filed a pro se petition for post-conviction relief in
which he raised claims of ineffective assistance of counsel and involuntary and unknowing
guilty pleas. As for his ineffective assistance of counsel claim, he alleged that counsel was
ineffective for failing to fully investigate the case, failing to adequately explain the nature
and consequences of his pleas, and failing “to timely communicate formal offers from the
prosecution.” The petitioner asserted that his petition should be permitted pursuant to
Tennessee Code Annotated section 40-30-102(b) because Missouri v. Frye, which was
released less than a year prior to his filing of his petition, established a new constitutional law
requiring retroactive application. On June 18, 2012, the post-conviction court summarily
dismissed the petition on the basis that it was untimely and that there was “no contest” that
counsel communicated the plea offers from the State. This appeal followed.

                                          ANALYSIS

       The petitioner argues that the post-conviction court erred by summarily dismissing the
petition as untimely because Frye established a new constitutional right requiring retroactive
application. The State disagrees, arguing that the post-conviction court properly dismissed
the petition because the decision in Frye was an application of the Sixth Amendment right
to counsel as defined in Strickland v. Washington, 466 U.S. 668 (1984), and not the
establishment of a new constitutional right. We agree with the State.

       Post-conviction relief is warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. Tenn.
Code Ann. § 40-30-103. The burden in a post-conviction proceeding is on the petitioner to
prove the factual allegations in support of his or her grounds for relief by clear and
convincing evidence. Tenn. Code Ann. § 40-30-110(f); Dellinger v. State, 279 S.W.3d 282,
293-94 (Tenn. 2009). On appeal, we are bound by the post-conviction court’s findings of
fact unless we conclude that the evidence in the record preponderates against those findings.
Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of
law, however, are subject to de novo review with no presumption of correctness. Id. at 457.

       Under the Post-Conviction Procedure Act, a claim for post-conviction relief must be
filed “within one (1) 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) year of the date on which
the judgment became final, or consideration of the petition shall be barred.” Tenn. Code
Ann. § 40-30-102(a) (2012).

       The post-conviction statute contains a specific anti-tolling provision:

       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

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       reopen established by this chapter, and the one-year limitations period is an
       element of the right to file the action and is a condition upon its exercise.
       Except as specifically provided in subsections (b) and (c), the right to file a
       petition for post-conviction relief or a motion to reopen under this chapter shall
       be extinguished upon the expiration of the limitations period.

Id.

      Subsection (b) of the statute sets forth the three narrow exceptions under which an
untimely petition may be considered, which includes when

              (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. The
       petition must be filed within one (1) year of the highest state appellate court
       or the United States supreme court establishing a constitutional right that was
       not recognized as existing at the time of trial[.]

Id. § 40-30-102(b)(1). In addition, principles of due process may allow for the tolling of the
statute of limitations in limited circumstances. See Seals v. State, 23 S.W.3d 272, 279 (Tenn.
2000) (“[W]e conclude that while the one-year statute of limitations set forth in Tenn. Code
Ann. § 40-30-202(a) does not violate due process on its face, application of the statute must
not deny a petitioner a reasonable opportunity to raise a claim in a meaningful time and
manner.”); see also Williams v. State, 44 S .W.3d 464, 468 (Tenn. 2001); Burford v. State,
845 S.W.2d 204, 208 (Tenn. 1992).

      In Frye, the United States Supreme Court held that “defense counsel has the duty to
communicate formal offers from the prosecution to accept a plea on terms and conditions that
may be favorable to the accused.” 132 S. Ct. at 1408. The court noted that

              In order to complete a showing of Strickland prejudice, defendants who
       have shown a reasonable probability they would have accepted the earlier plea
       offer [which counsel failed to communicate] must also show that, if the
       prosecution had the discretion to cancel it or if the trial court had the discretion
       to refuse to accept it, there is a reasonable probability neither the prosecution
       nor the trial court would have prevented the offer from being accepted or
       implemented.

Id. at 1410.



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       Initially, we note that the petitioner alleges in his petition only that trial counsel failed
“to timely communicate formal offers from the prosecution,” without alleging that counsel
allowed a plea bargain offer to expire without communicating it to him, that he would have
accepted an earlier plea bargain offer with more favorable terms, or that an earlier, lapsed
plea bargain “would have been entered without the prosecution canceling it or the trial court
refusing to accept it[.]” Id. at 1409. We, thus, agree with the post-conviction court that Frye
is inapplicable to the petitioner’s case.

        Moreover, as the State correctly points out in its brief, other courts that have addressed
this issue have concluded that Frye did not establish a new constitutional right but instead
merely applied the Strickland standard for determining ineffective assistance of counsel
claims to the plea negotiation process, specifically, counsel’s duty to communicate formal
plea offers to the defendant. See, e.g., Buenrostro v. United States, 697 F.3d 1137, 1139 (9th
Cir. 2012); In re King, 697 F.3d 1189 (5th Cir. 2012); Hare v. United States, 688 F.3d 878,
879 (7th Cir. 2012); In re Perez, 682 F.3d 930, 932 (11th Cir. 2012); Marcus Stovall v.
United States, Nos. 1:12-cv-377, 1:02-cr-32, 2013 WL 392467, at *2 (E.D. Tenn. Jan. 31,
2013) (“Indeed, neither the Frye or Lafler [v. Cooper, 132 S. Ct. 1376 (2012)] case constitute
a new rule as they merely applied the Sixth Amendment right to effective assistance of
counsel claims according to the test first articulated in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and established in the plea bargaining context
in Hill v. Lockhart, 474 U. S. 52, 57, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985). Since Frye
and Lafler were decided, it appears the courts addressing this issue have held that neither
case created a new constitutional right to be applied retroactively.”) (citations omitted).

        We, likewise, conclude that Frye did not announce a new rule of constitutional law
to be applied retroactively. We, therefore, affirm the judgment of the post-conviction court
summarily dismissing the petition on the basis that it was filed outside the one-year statute
of limitations and the petitioner has not shown any reason for the statute of limitations to be
tolled.

                                        CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court summarily dismissing the petition for post-conviction relief.




                                                      _________________________________
                                                      ALAN E. GLENN, JUDGE



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