         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                  Assigned on Briefs November 24, 2009 at Knoxville

           CHRISTOPHER N. ORLANDO v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Dekalb County
                           No. 02-126(A)    Leon C. Burns, Judge



                     No. M2008-01621-CCA-R3-PC - Filed Janaury 4, 2010


The petitioner, Christopher N. Orlando, appeals from the summary dismissal of his petition for post-
conviction relief. Holding that the petition is time-barred, we affirm.

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

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and D. KELLY THOMAS, JR., JJ., joined.

Christopher N. Orlando, Only, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General;
Randall A. York, District Attorney General; and William M. Locke, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

                In April 2004, a Dekalb County Criminal Court jury convicted the petitioner,
Christopher N. Orlando, of facilitation of first degree murder for his role in the shooting death of the
victim, Josh Murphy. This court affirmed the conviction and the accompanying 35-year sentence
on August 3, 2006, and the petitioner did not file an application for permission to appeal to our
supreme court. See Christopher Nicholas Orlando v. State, No. M2005-01767-CCA-R3-CD (Tenn.
Crim. App., Nashville, Aug. 3, 2006). The facts of the case, as summarized by this court on direct
appeal, are as follows:

                               On September 18, 2002, the body of Josh Murphy was
               found on Backbone Ridge off Highway 70 between Sparta and
               Smithville in DeKalb County. The deceased had sustained multiple
               gunshot wounds to the face. Both fired and unfired .12 gauge
               shotgun shells, as well as wadding, were found at the scene. During
               the investigation, Tennessee Bureau of Investigation (TBI) Agent Bob
                 Krofssik traveled to Kentucky four or five days after the discovery of
                 the body and interviewed Melvin Turnbill. Turnbill confessed to
                 participating in the murder and implicated the [petitioner] as the
                 shooter.

                                 . . . . At trial, Turnbill testified that on September
                 14-15, 2002, he went to Backbone Ridge to manufacture
                 methamphetamine with his friend Josh Murphy. When it started
                 raining, the two gathered their equipment and went to the home of
                 Turnbill’s girlfriend, Robin Baker. Murphy left around 2 or 2:30
                 A.M., and the [petitioner] arrived at Baker’s home around 4:00 A.M.
                 and spent the night. Around 9 A.M., Turnbill discovered that a
                 half-gallon jar of meth oil was missing. Turnbill advised Agent
                 Krofssik, “I told [the petitioner] to go get my gun that he was keeping
                 for me, and I was going to kill whoever got my meth oil.” Turnbill
                 reported that the two departed in the [petitioner]’s car for James
                 Reeves’ house where the victim was staying. The [petitioner]
                 escorted the victim from the house and took him to Turnbill, and the
                 threesome drove to Robin Baker’s house. At Baker’s house, Turnbill
                 borrowed a truck and drove the victim back to Backbone Ridge.
                 Meanwhile, the [petitioner] returned to Reeves’ house to compare a
                 sample of the methamphetamine Turnbill had manufactured to that
                 which the two suspected Murphy of stealing. The [petitioner] arrived
                 at Backbone Ridge an hour to an hour and a half later and reported a
                 match. Turnbill testified that the [petitioner] announced, “I went and
                 got your gun” and asked “if [Turnbill] wanted to do it or if [Turnbill]
                 wanted [the petitioner] to do it.” Turnbill responded that he would do
                 it, and he asked the victim if he had stolen the meth oil. The victim
                 ran around the vehicle in an attempt to hide and denied any
                 responsibility. Meanwhile, the [petitioner] took the pump shotgun
                 from Turnbill and started shooting. The victim charged the
                 [petitioner] and knocked him over, but the [petitioner] continued to
                 fire. Turnbill stated that at this point, he ran to his truck. The
                 [petitioner] threw the shotgun in the back of the truck, and Turnbill
                 drove to his girlfriend’s house. He took the truck, gun, and meth lab
                 to a friend’s house for safekeeping. Two days later, Turnbill returned
                 and asked for the gun. Turnbill left for Kentucky soon after the
                 victim’s body was found.

Id., slip op. at 1-2.

                On April 4, 2008, the petitioner filed a petition for post-conviction relief alleging that
the rulings in Cunningham v. California, 549 U.S. 270, 127 S. Ct. 856 (2007), and State v. Gomez,


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239 S.W.3d 733 (Tenn. 2007) (Gomez II), should “be applied retroactively to invalidate and/or void
his [s]entence.” Recognizing that he had filed his petition outside the one-year statute of limitations,
the petitioner asserted that the court could consider his claim because it was based upon the “new
constitutiona[l] right established by Cunningham and Gomez II.” In a written response to the
petition, the State asserted that “any Blakely v. Washington issues cannot be applied retroactively,
therefore there is no relief from the statute of limitations.” The post-conviction court agreed with
the State, ruling, “[Blakely v. Washington] and its progeny does not apply retroactively in a petition
for [p]ost[-]conviction relief and therefore does not create an exception to the one-year statute of
limitations.”

                “[A] person in custody . . . must petition for post-conviction relief . . . within one (1)
year of the date of the final action of the highest state appellate court to which an appeal is taken.”
T.C.A. § 40-30-102(a) (2006). The statute of limitations for filing a post-conviction petition is
jurisdictional. See id. § 40-30-102(b) (“No court shall have jurisdiction to consider a petition filed
after the expiration of the limitations period unless [certain statutory prerequisites are met].”). Our
supreme court has held that “the one-year statutory period is an element of the right to file a
post-conviction petition and that it is not an affirmative defense that must be asserted by the State.”
State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001). Thus, “it is incumbent upon a petitioner to include
allegations of fact in the petition establishing either timely filing or tolling of the statutory period,”
and the “[f]ailure to include sufficient factual allegations of either compliance with the statute or
[circumstances] requiring tolling will result in dismissal.” Id.

              A petition for post-conviction relief filed outside the one-year statute of limitations
may nevertheless be considered if its allegations fall within three rather narrow exceptions:

                (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. Such petition must be filed within one (1)
                year of the ruling 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;

                (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, in which case the petition must be filed



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                within one (1) year of the finality of the ruling holding the previous
                conviction to be invalid.

T.C.A. § 40-30-102(b)(1)-(3). Additionally, due process principles may, in very limited
circumstances, require tolling of the post-conviction statute of limitations. See generally Seals v.
State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).

                Here, the petition for post-conviction relief asked that the petition be considered
despite its untimeliness because the rulings in Cunningham v. California, 549 U.S. 270, 127 S. Ct.
856 (2007), and State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (Gomez II), established a new
constitutional right not in existence at the time of the petitioner’s trial. This court has repeatedly
held that the rulings in the line of cases following Blakely v. Washington, including those in
Cunningham and Gomez II, did not announce a new rule of law and are not, therefore, subject to
retroactive application. See, e.g., Bobby Taylor v. State, No. M2008-00335-CCA-R3-PC (Tenn.
Crim. App., Nashville, July 14, 2009); Ortega Wiltz v. State, No. M2006-02740-CCA-R3-CD (Tenn.
Crim. App., Nashville, Apr. 25, 2008), perm. app. denied (Tenn. Oct. 27, 2008); Billy Merle Meeks
v. Ricky J. Bell, Warden, No. M2005-00626-CCA-R3-HC (Tenn. Crim. App., Nashville, Nov. 13,
2007), perm. app. denied (Tenn. Apr. 7, 2008). Thus, the post-conviction court did not err by
dismissing the petition as time-barred.

                Finally, the petitioner claims that, had the post-conviction court held an evidentiary
hearing, he “would have established, through the testimony of his trial/appellate counsel” that
counsel failed to advise him of his right to file a petition for post-conviction relief and the limitations
on doing so. We need not belabor this argument because it is presented for the first time on appeal
and therefore waived. See Tenn. R. App. P. 36; State v. Johnson, 970 S.W.2d 500, 508 (Tenn. Crim.
App. 1996) (“Issues raised for the first time on appeal are considered waived.”).

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


                                                         ___________________________________
                                                         JAMES CURWOOD WITT, JR., JUDGE




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