        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs October 3, 2006

                  MICHAEL EVANS v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Shelby County
                         No. P-26420     Joseph B. Dailey, Judge



                 No. W2006-00172-CCA-R3-PC - Filed November 21, 2006


The Appellant, Michael Evans, appeals the Shelby County Criminal Court’s dismissal of his petition
for post-conviction relief. Evans’ petition was summarily dismissed by the post-conviction court
upon grounds that it was time-barred by the statute of limitations. On appeal, Evans contends that
application of the statute of limitations in this case serves to deny him his right to due process.
Following review of the record before us, we affirm the dismissal of the petition as it was filed
outside the one-year statute of limitations and because Evans has failed to establish any ground
which would support a tolling of the statute.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT
W. WEDEMEYER , JJ., joined.

Michael Evans, Pro Se, Petros, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                                       Procedural History

        On April 7, 1993, a Shelby County jury convicted the Appellant of one count of second
degree murder and one count of aggravated assault, both of which occurred on October 16, 1990.
State v. Michael Evans, No. 02C01-9306-CR-00109 (Tenn. Crim. App. at Jackson, Oct. 12, 1994),
vacated and reinstated, (Tenn. Crim. App. at Jackson, Jan. 31, 1995). The Appellant was
subsequently sentenced as a Range I offender to consecutive sentences of twenty-five years for the
second degree murder and six years for the aggravated assault. Id. A panel of this court affirmed
the convictions and sentences on direct appeal. Id. The Tennessee Supreme Court denied
application for permission to appeal on April 10, 1995.

       On May 6, 2002, the Appellant filed a pro se petition for post-conviction relief in the Shelby
County Criminal Court asserting a myriad of grounds for relief. Michael Evans v. State, No. W2002-
02623-CCA-R3-PC (Tenn. Crim. App. at Jackson, Mar. 25, 2003). Despite the Appellant’s assertion
in his petition that the statute of limitations should be tolled due to his assertion of mental
incompetence, the post-conviction court entered an order on September 25, 2002, summarily
dismissing the petition as time-barred. Id. A panel of this court affirmed the dismissal on appeal
concluding that the petition was time-barred because the Appellant had failed to make a prima facie
showing of incompetence. Id.

        The petition now before us, the Appellant's second petition for post-conviction relief, was
filed on April 28, 2005. On November 30, 2005, the Shelby County Criminal Court summarily
dismissed the petition as being time-barred. The court specifically concluded that the petition was
filed outside the applicable statute of limitations and that the Appellant had failed to establish a valid
reason for tolling the statute of limitations. On December 29, 2005, the Appellant filed his timely
notice of appeal.

                                                Analysis

        On appeal, the Appellant asserts that the post-conviction court’s summary dismissal of his
petition for post-conviction relief violated his right to due process. As such, the Appellant argues
that he is “challenging the Constitutionality of any time barrier on justice.”

        Initially, we are constrained to note that the Appellant has waived consideration of his post-
conviction claim by his failure to prepare an adequate record on appeal. An appellant bears the
burden of preparing an adequate record for appellate review. State v. Ballard, 855 S.W.2d 557, 560
(Tenn. 1993). “Where the record is incomplete and does not contain a transcript of the proceedings
relevant to an issue presented for review, or portions of the record upon which the party relies, an
appellate court is precluded from considering the issue.” Id. at 560-61; see also Tenn. R. App. P.
24(b). Although the Appellant appeals the dismissal of his post-conviction petition, he has failed
to include the petition in the record. Thus, any review of the petition is obviously precluded.
Nonetheless, we elect to review the issue of whether the post-conviction court appropriately
dismissed the petition as time-barred by the statute of limitations.

        The 1995 Post-Conviction Procedure Act governs all petitions for post-conviction relief filed
after May 10, 1995, and provides for the filing of petitions within one year of “the date of the final
action of the highest state appellate court to which an appeal is taken, or . . . the date on which the
judgment became final.” T.C.A. § 40-30-102(a) (2003). The judgments in this case became final
on April 10, 1995, upon the Tennessee Supreme Court’s denial of permission to appeal. The record
indicates that the Appellant filed the instant petition on April 28, 2005, well beyond the applicable



                                                   -2-
statute of limitations period. Clearly, the petition is barred from consideration by the statute of
limitations.

        The Appellant acknowledges that his petition was filed outside the applicable statute of
limitations period. However, he argues that by applying the statute of limitations to his case, he is
effectively denied the right to present his claim in violation of his due process rights. While the
statute of limitations applies in all cases, our supreme court has held that due process dictates that
the statute of limitations may not be so strictly applied so as to deny a person the opportunity to have
his claim heard and determined at a meaningful time and in a meaningful manner. State v.
McKnight, 51 S.W.3d. 559 (Tenn. 2001); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).
Nonetheless, the Post-Conviction Act provides that the exceptions to the statute of limitations are
explicitly limited to: (1) claims based upon a new rule of constitutional law applicable to a
petitioner’s case; (2) claims based upon new scientific evidence showing innocence; and (3) claims
based upon enhanced sentences that were enhanced because of convictions subsequently found to
be illegal. T.C.A. § 40-30-102(b)(1)-(3). As a lower appellate court, we are bound by the decisions
of our supreme court with regard to the constitutionality and applicability of the statute of
limitations. On the record before us, the Appellant has failed to allege any claim which would
qualify as an exception to the statute of limitations and failed to include any evidence which would
suggest that any of three exceptions to the statute of limitations applies. Moreover, he offers no
factual grounds which would establish that he was unable to file his post-conviction petition within
the one-year time period after the judgments became final. Accordingly, we conclude that the post-
conviction court’s summary dismissal of the petition was proper as the petition was filed outside the
statute of limitations and no reason for tolling the statute was established.

                                          CONCLUSION

       Based upon the foregoing, the Shelby County Criminal Court’s summary dismissal of the
Appellant’s petition for post-conviction relief is affirmed.


                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




                                                  -3-
