             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                               AT JACKSON
                                 Assigned on Briefs February 5, 2002

                       ANDRE WILSON v. STATE OF TENNESSEE

                     Direct Appeal from the Criminal Court for Shelby County
                                No. P-25387    Chris Craft, Judge



                         No. W2001-02442-CCA-R3-PC - Filed April 17, 2002


On November 27, 1995, the Petitioner, pursuant to a negotiated plea agreement, pleaded guilty to
six counts of aggravated robbery. The trial court sentenced the Petitioner to eighteen years
incarceration for each count, to be served concurrently with each other and with a 1993 federal
sentence of 137 months for armed bank robbery. On July 19, 2001, the Petitioner filed a petition for
post-conviction relief and/or a writ of coram nobis based on the decision of federal authorities not
to award him credit for the time he served in state custody. The post-conviction court denied relief
based on the statute of limitations. The Petitioner now appeals, arguing that the post-conviction
court erred in denying him post-conviction relief. Finding no error, we affirm the judgment of the
post-conviction court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES, J.,
joined. DAVID G. HAYES, J., filed a dissenting opinion.

Andre Wilson, Pro Se, Memphis, Tennessee, the Appellant.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;
William L. Gibbons, District Attorney General; and James A. Wax, Jr., Assistant District Attorney
General for the Appellee, State of Tennessee.

                                                     OPINION

       On November 27, 1995, the Petitioner, Andre Wilson, pursuant to a negotiated agreement,
pleaded guilty as a Range II, multiple offender to six counts1 of aggravated robbery, a Class B
felony. As part of the negotiated plea agreement, the Petitioner was sentenced to eighteen years


         1
            Although an additional conviction was listed in the plea agreem ent, only six judgments were included in the
techn ical record.
incarceration for each count in the Tennessee Department of Correction, to be served concurrently
with each other and with his federal sentence.2 On January 26, 1999, the Petitioner was released on
parole from the Tennessee Department of Correction and taken into federal custody for the service
of his federal sentence.

        On July 19, 2001, the Petitioner filed a petition for post-conviction relief and/or writ of
coram nobis based on the decision of federal authorities not to award him credit for the time he
served in state custody. In his petition, the Petitioner argued that he was denied due process of law
as his original plea of guilty was not entered voluntarily, knowingly and intelligently. Specifically,
the Petitioner argues that he pleaded guilty based on the agreement that his eighteen-year sentence
would be served concurrently with his federal sentence; however, the federal authorities refused to
award him credit for the time he served in state custody.

        According to the Petitioner, his federal sentence was computed for the first time in March
1999, and that is when he learned that he had not received any credit on his federal sentence for the
time he served in the Tennessee Department of Correction. In his petition, the Petitioner stated that
he delayed filing a petition for post-conviction relief because he “believed that [the] Federal Bureau
of Prisons was the cause of his not receiving credit on his Federal sentence for the time he served
in the State of Tennessee.” The Petitioner stated that he exhausted his grievance remedies through
the Federal Bureau of Prisons and was denied relief.

        The post-conviction court denied relief based on the statute of limitations. In its order
denying post-conviction relief, the post-conviction court noted that because the Petitioner did not
appeal his guilty plea, “it plainly appears that the petition [was] not filed within the statute of
limitations of one year.” The post-conviction court also stated,
        It is clear from the facts alleged in the petition that when [the] Petitioner discovered
        he was not receiving credit for his Tennessee time, he chose to pursue federal
        remedies but did not choose to pursue those available in state court. Assuming the
        allegations in his petition to be true, and assuming the applicability of Buford v.
        State, 845 S.W.2d 204 (Tenn. 1995), and Sands v. State, 903 S.W.2d 297 (Tenn.
        1995), which would toll the statute due to “a later-arising claim,” more than one year
        has passed between the time of this alleged discovery, March of 1999, and the filing
        of the instant petition [on] July 19, 2001. Therefore, Buford and Sands cannot revive
        this late-filed petition.

       The Petitioner now appeals, arguing that the post-conviction court erred in denying him post-
conviction relief. In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional right. Tenn.

         2
          The Petitioner was convicted on June 25, 1993 in the United States District Court for the Eastern District of
Arkansas for armed bank robbery, a violation of 18 U.S.C. § 2113(d). The Petitioner was sentenced to a term of 137
months incarceration. The federal judgment and commitment order were silent as to the relationship to any forthcoming
action by th e State of Tenn essee.

                                                         -2-
Code Ann. § 40-30-203. However, a petition must be filed 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 year of the date on which the judgment became final. Id. § 40-30-202. In this case, the trial
court's judgment of conviction was entered on November 27, 1995. The Petitioner never filed an
appeal from his guilty plea, and the Petitioner did not file a petition for post-conviction relief until
July 19, 2001. Thus, the petition was untimely.

        Although the Petitioner filed his petition outside the one-year limit, he argues that he is
nevertheless entitled to relief because he did not learn of the claim until more than one year after the
final judgment. A “later-arising” claim may toll the statute of limitations. See Seals v. State, 23
S.W.3d 272, 278 (Tenn. 2000); Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). The following
framework should be considered in determining if the statute should be tolled:
        (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
        wouldnormallyhavecommenced;and(3)ifthegroundsare“later-arising,”determineif,underthefactsofthecase,astrictapplicationof
the limitations period would effectively deny the petitioner a reasonable opportunity to present the
claim.
Sands, 903 S.W.2d at 301. “To determine whether a petitioner was denied a reasonable opportunity
to present a claim, a court must balance the liberty interest in collaterally attacking the constitutional
violations occurring during the conviction process against the State’s legitimate interest in
preventing the litigation of stale and fraudulent claims.” Wright v. State, 987 S.W.2d 26, 28 (Tenn.
1999).


        In this case, the Petitioner was made aware in March 1999 that he had not received credit on
his federal sentence for the time he served in the Tennessee Department of Correction; however, he
did not file a petition for post-conviction relief until July 19, 2001. Even if the statute were tolled
until the claim was discovered, the Petitioner’s petition was not timely. The Petitioner had a
“reasonable opportunity” to present his claim. Id. However, the Petitioner failed to file a petition
for post-conviction relief until more than two years after the discovery that he had not received credit
on his federal sentence for the time he served in the Tennessee Department of Correction.


         Accordingly, the judgment of the post-conviction court is AFFIRMED.



                                                                    ___________________________________
                                                                    ROBERT W. WEDEMEYER, JUDGE




                                                             -3-
