 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE                                     FILED
                                                                         November 10, 1999
                 SEPTEMBER 1999 SESSION                                  Cecil Crowson, Jr.
                                                                        Appellate Court Clerk



MARK SHANE GRIFFIS,                *        C.C.A. No. 03C01-9811-CR-00397

              Appellant,           *        ROANE COUNTY

VS.                                *        Hon. E. Eugene Eblen, Judge
STATE OF TENNESSEE,                *        (Post-Conviction)

              Appellee.            *



For Appellant:                              For Appellee:

Joe Walker                                  Paul G. Summers
Public Defender                             Attorney General & Reporter
Ninth Judicial District
P.O. Box 334                                Todd R. Kelley
Harriman, TN 37748-0334                     Assistant Attorney General
                                            425 Fifth Avenue North
Alfred Lee Hathcock, Jr.                    2d Floor, Cordell Hull Building
Assistant Public Defender                   Nashville, TN 37243-0493
Ninth Judicial District
P.O. Box 334                                Charles Hawk
Harriman, TN 37748-0334                     District Attorney General
                                            Ninth Judicial District
Walter Johnson                              P.O. Box 703
Assistant Public Defender                   Kingston, TN 37763-0703
Ninth Judicial District
P.O. Box 334                                D. Roger Delp
Harriman, TN 37748-0334                     Assistant District Attorney General
                                            Ninth Judicial District
                                            P.O. Box 703
                                            Kingston, TN 37763-0703


OPINION FILED:__________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                            OPINION

              The petitioner, Mark Shane Griffis, appeals the trial court’s denial of

post-conviction relief. The single issue presented for review is whether the petition
was barred by the statute of limitations.


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              We affirm the judgment of the trial court.



              On March 15, 1995, the petitioner entered a plea of guilt to the sale of
.5 gram of cocaine. On August 1, 1995, the petitioner received a sentence of eight

years in a community corrections program. He did not appeal. Later, the trial court

revoked the community corrections sentence and ordered the petitioner to serve the
term in the Department of Corrections. The order was upheld on direct appeal.

State v. Mark Griffis, No. 03C01-9708-CR-00358 (Tenn. Crim. App., at Knoxville,

Oct. 13, 1998.). Two years and four months after the imposition of sentence, the
petitioner filed this petition for post-conviction relief alleging that the prosecution

withheld exculpatory evidence, that his guilty plea was neither knowingly nor

voluntarily entered, and that his counsel was ineffective. The trial court dismissed
the petition on the basis that it was barred by the statute of limitations. The

petitioner asserts that the application of the statute of limitations would abridge his

right to due process. See Sands v. State, 903 S.W.2d 297 (Tenn. 1995); Burford v.

State, 845 S.W.2d 204, 208 (Tenn. 1992).



              Under the Post-Conviction Procedure Act of 1995, a petition must be

filed “within one (1) 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 (1) year of the
date on which the judgment became final, or consideration of such petition shall be

barred.” Tenn. Code Ann. § 40-30-202(a). The statute provides that the limitations

period “shall not be tolled for any reason, including any tolling or saving provision
otherwise available at law or equity.” Id. Thus, this petition, filed well past

limitations of the statute, is barred.



              There are exceptions. If the claim is based upon a new rule of
constitutional law, upon new scientific evidence showing innocence, or upon a

sentence that was enhanced because of convictions that have subsequently been

found to be illegal, then the petitioner has recourse. Tenn. Code Ann. § 40-30-
202(b).


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              Neither ineffective assistance of counsel, the entry of an invalid guilty

plea, nor withholding exculpatory evidence qualify as new constitutional grounds for

relief. See Strickland v. Washington, 466 U.S. 668 (1984); Boykin v. Alabama, 395
U.S. 238 (1969). Thus, the allegations in the petition do not satisfy any exception to

the statute of limitations. Moreover, the application of the statute of limitations in

this instance does not run afoul of due process principles.


              In Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992), our supreme

court held that in certain situations the application of the statute of limitations in a
post-conviction proceeding might violate constitutional due process. In determining

whether there has been such a violation, the essential question is whether the time

period allowed by law provides the petitioner with a fair and reasonable opportunity
to file suit. Id. In Burford, the petitioner could not have filed within the three-year

limitation absent a determination on his prior post-conviction petition. Our supreme

court ruled that Burford was “caught in a procedural trap and unable to initiate

litigation ... despite the approach of the three-year limitation.” Id. There was no

such trap here.


              In Sands v. State, 903 S.W.2d 297 (Tenn. 1995), our supreme court

further defined how to apply the Burford test. The requirements are to:
              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. In making this final
              determination, courts should carefully weigh the
              petitioner’s liberty interest in “collaterally attacking
              constitutional violations occurring during the conviction
              process,” against the state’s interest in preventing the
              litigation of “stale and fraudulent claims.”

Sands, 903 S.W.2d at 301 (citations omitted) (quoting Burford, 845 S.W.2d at 207,

208).



              By the use of these guidelines, we have determined that the statute of

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limitations for this petitioner’s convictions expired in 1996. Because these claims

have always been available to the petitioner, none of the grounds fit within the

exception to the rule. The trial court did not err by dismissing the post-conviction
petition.



              Accordingly, the judgment is affirmed.




                                               Gary R. Wade, Presiding Judge

CONCUR:



Jerry L. Smith, Judge



James Curwood W itt, Jr., Judge




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