         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                           Assigned on Briefs December 6, 2005

                 CARLITO D. ADAMS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                         No. P-22151    James C. Beasley, Jr., Judge



                  No. W2005-00459-CCA-R3-PC - Filed February 24, 2006


The petitioner, Carlito D. Adams, was convicted in 1995 of two counts of felony murder and two
counts of attempted felony murder, with the latter being reversed and dismissed. See State v. Carlito
D. Adams, No. 02C01-9608-CR-00267, 1997 Tenn. Crim. App. LEXIS 1247 (Tenn. Crim. App.
Dec. 11, 1997), perm. to appeal denied concurring in results only (Tenn. Nov. 9, 1998). In
November 1999, he filed a petition for post-conviction relief, which, according to the petitioner, was
dismissed for failure to prosecute. Additionally, he alleges that this court denied, on January 25,
2002, his motion to reconsider the dismissal. On January 19, 2005, he filed a motion to reopen his
post-conviction petition, claiming that a new right, which he sought to assert, had been recognized
in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and that there was new scientific
evidence establishing his actual innocence. The post-conviction court denied the motion to reopen,
and the petitioner appealed. Following our review, we affirm the order of the post-conviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT
W. WEDEMEYER , JJ., joined.

Carlito Adams, Whiteville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
and William L. Gibbons, District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

       The facts which were the basis for the petitioner’s convictions were set out in this court’s
opinion on direct appeal:
       The defendant lead [sic] his accomplices to the Dawson residence on David Street.
       He approached the vehicle first. Thomas testified that the defendant had a weapon.
       The defendant ordered Blackman out of the car and, when Blackman began to run,
       the defendant yelled “Get him!” Eric Jones testified that he saw the defendant and
       two others standing by the car, heard one say, “Drop it off,” and observed the victims
       removing jewelry. In his statement to police, the defendant acknowledged that he
       called his friends for “back up,” was aware that several of his companions had
       weapons, and knew that a robbery occurred. The jury rejected his claim that he
       learned of the information second hand some time after the commission of the
       crimes. Thus, the evidence is sufficient to show that the defendant was reckless in
       his actions, knowingly participated in the robbery, and acted recklessly in regard to
       the victims. The evidence is also sufficient to show that the killings were not
       independent from the robbery and were a natural and probable consequence arising
       from the events. In our view, a rational trier of fact could have found the defendant
       guilty beyond a reasonable doubt.

Carlito D. Adams, 1997 Tenn. Crim. App. LEXIS, at *27-28.

                                            ANALYSIS

        In our review, we first will trace the various post-conviction filings which the petitioner has
made since the opinion of this court on December 11, 1997, affirming his convictions for first degree
felony murder and reversing those for attempted first degree felony murder. Our supreme court
denied the petitioner’s application for permission to appeal, concurring in results only, on November
9, 1998.

        A March 18, 2003, order of this court denying the petitioner’s application for delayed appeal
noted he claimed that in November 1999 he had filed a petition for post-conviction relief, which was
dismissed on August 3, 2000, because of his failure to prosecute the petition. He then filed a motion
to reconsider the dismissal which was denied on January 25, 2002. On January 19, 2005, he filed
a motion to reopen the post-conviction petition, arguing that Blakely v. Washington, 542 U.S. 296,
125 S. Ct. 2531 (2004), according to his petition, “establish[ed] a constitutional right that was not
recognized as existing at the time of trial but now is required to be recognized and applied in [his]
case” and that a “TBI ballistics report of actual murder weapons and who used these weapons” his
actual innocence. According to the petitioner, the report “proves that [he] did not shoot anyone or
that [he] had a weapon used in [the] crime.” He provided no other information about the report.

       The post-conviction court entered an order on January 24, 2005, denying the motion to
reopen, stating:

               This cause came on to be heard on a motion to repoen a petition for post[-]
       conviction relief. The original petition for post[-]conviction relief was dismissed for
       failure of the petitioner to prosecute his petition. The statute of limitations has long


                                                 -2-
        since run. Several efforts have been made by the petitioner to restart the process.
        Again, the petitioner has not shown any colorable or statutory grounds to allow a
        waiver of the statute of limitations, therefore there is no petition to reopen. For those
        reasons the motion in this cause is not well taken and should be dismissed.

        The petitioner’s notice of appeal was dated February 14, 2005, and filed by the clerk on
February 16, 2005. Tennessee Code Annotated section 40-30-117(c) requires that an application for
permission to appeal the denial of a motion to reopen a petition for post-conviction relief must be
filed within ten days from the dismissal. See also Tenn. Sup. Ct. R. 28, § 10(B). Even if we
construe the notice of appeal as adequate to get the matter before this court, it was untimely and this
court is without jurisdiction to consider it. See James R. Blevins v. State, No. E2004-02497-CCA-
R3-PC, 2005 WL 1651793 (Tenn. Crim. App. July 13, 2005); Mario Gates v. State, No. W2002-
02873-CCA-R3-PC, 2003 WL 23100815 (Tenn. Crim. App. Dec. 31, 2003). However, even if the
appeal were timely, we would conclude that it is without merit, as we will explain.

         On appeal, the petitioner does not mention either of the two claims which were the basis for
his motion to reopen but, instead, sets out a lengthy and rambling chronology of events from his
arrest, through his conviction and subsequent filing of several post-conviction pleadings. Much
space in his appellate brief is devoted to complaints that counsel who represented him were
ineffective.

      Tennessee Code Annotated section 40-30-117, see also Tenn. Sup. Ct. R. 28 § 2(C), governs
motions to reopen a post-conviction petition. A motion to reopen a prior post-conviction petition
may only be granted if the petitioner alleges that:

                 (1) a final ruling of an appellate court establishes a constitutional right that
        was not recognized as existing at the time of trial and retrospective application of the
        right is required; or

               (2) new scientific evidence exists establishing that the petitioner is actually
        innocent of the convicted offense(s); or

               (3) the petitioner's sentence was enhanced based upon a prior conviction
        which has subsequently been found invalid.

See T.C.A. § 40-30-117(a). If the claim is based upon a new constitutional rule of law, the claim
must be brought within one year of the ruling establishing that right. T.C.A. § 40-30-117(a)(1). If
the claim is based upon an invalid prior conviction, the claim must be brought within one year of the
ruling holding the prior conviction invalid. T.C.A. § 40-30-117(a)(3).

        In the present case, the petitioner essentially claims that the trial court abused its discretion
in denying his motion to reopen his post-conviction petition because Blakely created a new rule of
constitutional law. However, in State v. Gomez, 163 S.W.3d 632, 651 n.16 (Tenn. 2005), our


                                                  -3-
supreme court held that Blakely did not establish a new rule of law, explaining that “seeking
reopening [of a petition for post-conviction relief] under section [40-30]-117 based on Blakely would
be a futile endeavor.” Accordingly, even if not waived, this claim would be without merit.

         The petitioner also claimed, cryptically, in his motion that a TBI ballistics report “proves that
[he] did not shoot anyone or that [he] had a weapon used in [the] crime.” No additional information
was provided in the motion filed with the post-conviction court, and the petitioner makes no mention
of this report in his appellate brief. Accordingly, we conclude that this claim, also, is waived.

      In Howell v. State, 151 S.W.3d 450 (Tenn. 2004), our supreme court explained the factual
showing which must be made as to “actual innocence” before a petition for post-conviction relief
may be reopened:

        [D]efendants petitioning for post-conviction relief are held to more stringent
        standards as they proceed further along in this process. They must present only a
        “colorable claim” to relief in an original petition, but in a motion to reopen a
        post-conviction proceeding they must present facts which “would establish by clear
        and convincing evidence” that they are entitled to relief. These progressively higher
        standards attempt to balance the State's interest in maintaining the finality of
        judgments with a petitioner's interest in attacking a possibly unconstitutional
        conviction or sentence.

Id. at 460 (citation omitted).

       In this matter, the only “facts” alleged by the petitioner is that a TBI report would prove that
he “did not shoot anyone” or “had a weapon used in” the crime. However, such findings would be
contrary to the facts which were the bases of the petitioner’s convictions.

                                           CONCLUSION

        The order of the post-conviction court denying the motion to reopen is affirmed.


                                                         ___________________________________
                                                         THOMAS T. WOODALL, JUDGE




                                                   -4-
