                                                   FILED
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE
                                                       May 4, 1999
                        DECEMBER 1998 SESSION
                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk

JAMES E. SWIGGETT,                  )
                                    )
           Appellant,               )    C.C.A. No. 03C01-9804-CR-00161
                                    )
vs.                                 )    Greene County
                                    )
STATE OF TENNESSEE,                 )    Hon. James E. Beckner, Judge
                                    )
           Appellee.                )    (Post-Conviction)



FOR THE APPELLANT:                       FOR THE APPELLEE:

JAMES E. SWIGGETT (pro se)               JOHN KNOX WALKUP
168336 NECC                              Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683-5000             ELLEN H. POLLACK
                                         Assistant Attorney General
                                         425 Fifth Ave. N., 2d Floor
                                         Nashville, TN 37243-0493

                                         C. BERKELEY BELL, JR.
                                         District Attorney General
                                         109 S. Main St., Suite 501
                                         Greeneville, TN 37743




OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE
                                       OPINION



              The petitioner, James E. Swiggett, appeals from the Greene County

Criminal Court’s order dismissing his petition for post-conviction relief. In 1992, a

jury convicted the petitioner of first degree murder and sentenced him to life

imprisonment. He appealed his conviction, and this court affirmed on November

23, 1994. See State v. James (Jim) Swiggett, No. 03C01-9209-CR-00312 (Tenn.

Crim. App., Knoxville, Nov. 23, 1994), perm. app. denied (Tenn. Mar. 27, 1995). On

March 16, 1998, he filed a pro se petition for post-conviction relief alleging that he

was ineffectively assisted by counsel when a suppression issue was not adjudicated

on direct appeal because the appellate record did not include the record of the trial

court’s findings and conclusions of law on the suppression issue. The court below

found the petition barred by the statute of limitations and dismissed the action.1 The

petitioner contends that his petition is not barred by the statute of limitations

because of Burford v. State, 845 S.W.2d 204 (Tenn. 1992), and Sands v. State, 903

S.W.2d 297 (Tenn. 1995). Following a review of the record and the briefs of the

parties, we affirm the trial court’s dismissal of the petition.



              The Post-Conviction Procedure Act of 1995 governs all petitions for

post-conviction relief filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201,

Compiler’s Notes (1997). The statute of limitations for a petition for post-conviction

relief is one (1) year from the date of the final action of the highest state appellate



       1
          The post-conviction petition alleged the use at trial of a coerced, or
otherwise inadmissable, confession and unconstitutional selection of grand and
petit juries. However, these issues were not raised in this appeal and are
waived. Tenn. R. App. P. 13(b). Specifically, the petitioner has failed to argue
and cite authority in support of any claim that he is entitled to relief from the
statute of limitations, except for the ineffective assistance of counsel claim. This
claim is solely based on the lack of a record of the trial court’s findings and
conclusions in denying suppression of the petitioner’s pretrial statement to Agent
Morrell.

                                           2
court to which an appeal is taken. See Tenn. Code Ann. § 40-30-202(a) (1997).

In the case at bar, the final action of the highest state appellate court was the

Tennessee Supreme Court’s denial of the application for permission to appeal on

March 27, 1995. However, the petitioner had one year from the effective date of the

act, May 10, 1995, in which to file a petition for post-conviction relief. See Tenn.

Code Ann. § 40-30-201, Compiler’s Notes (1997). The petitioner filed his post-

conviction petition on March 16, 1998, well past the statute of limitations period.



              A petition filed beyond the one year statute of limitations can only be

considered if the claim (1) is based upon a newly established constitutional right that

was not recognized at the time of trial, (2) is based upon new scientific evidence

establishing actual innocence of the petitioner, or (3) seeks relief from an enhanced

sentence because the previous conviction, which formed the basis of the

enhancement, has been held to be invalid. Tenn. Code Ann. § 40-30-202(b)

(1997). The petitioner does not contend that any of the statutory exceptions apply

to his claims. Instead, the petitioner contends that the statute of limitations should

not bar his petition because the basis of his claims are “later-arising” facts under

Burford.



              In Burford, our supreme court stated that “under the circumstances

of a particular case, application of the statute [of limitations] may not afford a

reasonable opportunity to have the claimed issue heard and decided.” Burford v.

State, 845 S.W.2d 204, 208 (Tenn. 1992). To determine whether due process

requires waiver of the statute of limitations in a particular case, a court must

consider the governmental and private interests involved. Id. at 209. The supreme

court clarified the Burford rule in Sands v. State, 903 S.W.2d 297 (Tenn. 1995).

The rule from Sands and Burford is that “in certain circumstances, due process

prohibits the strict application of the post-conviction statute of limitations to bar a

                                          3
petitioner’s claim when the grounds for relief, whether legal or factual, arise after .

. . the point at which the limitations period would normally have begun to run.”

Sands, 903 S.W.2d at 301. The court established a three-step process:

              (1) determine when the limitations period would
              normally have begun to run; (2) determine whether the
              grounds for relief actually arose after the limitations
              period would normally have commenced; and (3) if the
              grounds are “later-arising,” determine if, under the facts
              of the case, a strict application of the limitations period
              would effectively deny the petitioner a reasonable
              opportunity to present the claim.

Id.



              Under the three-step process of Sands, the petitioner’s limitations

period began to run after the Tennessee Supreme Court’s denial of his application

for permission to appeal on March 27, 1995.          The petitioner alleges that he

discovered the facts regarding his ineffective assistance of counsel claim in April

1996 when he reviewed his attorneys’ responses to the claims that the petitioner

had filed with the Board of Professional Responsibility. We have reviewed trial and

appellate counsels’ April 1996 letters to the Board of Professional Responsibility

and find nothing that adds to the information the petitioner already had.2



              A review of the record reveals that the petitioner was aware much

earlier of appellate counsel’s inability to obtain a transcript or order containing the

trial court’s findings of facts and conclusions of law on the suppression issue.3 On

November 19, 1993, appellate counsel moved this court for an order to compel the


       2
         In any event, the petitioner alleges discovery in April 1996, although he
did not file his petition until almost two years later, on March 16, 1998.
       3
          In fact, the petitioner obtained an additional transcript on the
suppression issue, which his attorneys could not obtain. However, the additional
transcript provided by the petitioner as an exhibit to his petition states that the
trial judge ordered the parties to prepare briefs on the suppression issue before
he ruled. The record still does not contain a transcript or order containing the
judge’s findings of fact and conclusions of law on the suppression issue.

                                          4
filing of a transcript of the trial court’s findings and conclusions on the suppression

issue and wrote the defendant to advise him of the reason for the delay in the direct

appeal process. Additionally, the petitioner became aware of the absence of the

trial court’s findings and conclusions in the appellate record upon the filing of our

opinion on his direct appeal in 1994. See State v. James (Jim) Swiggett, slip op. at

4 (“However, the record presented for review is devoid of a written motion to

suppress the statement or the findings of fact and conclusions of law presented by

the trial court. Consequently, the record is insufficient for this Court to resolve the

merits of this issue.”)



              Upon the filing of the direct appeal opinion, the petitioner should have

become aware of a claim for ineffective assistance of counsel due to appellate

counsel’s (1) failure to obtain the absent transcript, or (2) failure to raise the

absence of the transcript as an irregularity requiring reversal, or at least requiring

a remand to the trial court for entry of findings on the suppression issue. See, e.g.,

Reginald Dion Hughes v. State, No. 02C01-9201-CR-00005, slip op. at 6 (Tenn.

Crim. App., Jackson, Dec. 16, 1992) (petitioner alleged ineffective assistance of

counsel for failure to include a transcript of the suppression hearing in the appellate

record); Raymond O. Jackson v. State, No. 01C01-9608-CR-00368, slip op. at 11

(Tenn. Crim. App., Nashville, Jan. 28, 1998) (remanding case for reconstruction of

inadequate record). Neither of these claims would require that the absent transcript

be a part of the record. In fact, the absence of the transcript in the record would be

the proof for the claim. Instead, the petitioner waited to file a petition for post-

conviction relief until he received an additional transcript.

              Because the petitioner knew the facts regarding counsel’s inability to

obtain the absent transcript before March 27, 1995, his grounds for relief are not

later-arising. See Sands, 903 S.W.2d at 302. Once a court finds that the grounds

for relief are not later-arising, the analysis under Sands ends. Id. The petitioner

                                          5
knew his claim of ineffective assistance of counsel existed before the statute of

limitations period commenced. We find that the application of the statute of

limitations does not violate the petitioner’s due process rights.



              In consideration of the foregoing and the record as a whole, the

judgment of the trial court is affirmed.



                                           ________________________________
                                           JAMES CURWOOD WITT, JR., JUDGE


CONCUR:



_______________________________
DAVID G. HAYES, JUDGE



_______________________________
JERRY L. SMITH, JUDGE




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