         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs September 28, 2004

             JAMES MARVIN MARTIN v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Knox County
                         No. 77512    Richard Baumgartner, Judge



                    No. E2004-00740-CCA-R3-PC - Filed October 11, 2004


The petitioner, James Marvin Martin, appeals the denial of his petition for post-conviction relief,
arguing that the post-conviction court erred in finding that his claim was beyond the statute of
limitations. After careful review, we affirm the denial of the petition.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
DAVID H. WELLES, JJ., joined.

Liddell Kirk, Knoxville, Tennessee, for the appellant, James Marvin Martin.

Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Randall Eugene Nichols, District Attorney General; and Philip H. Morton, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

                                 Facts and Procedural History

        In 1989, the petitioner was convicted of two counts of aggravated kidnapping and two
counts of armed robbery. A sentence of life in prison was imposed pursuant to the Habitual
Criminal Act. In 1990, this Court reversed the petitioner’s two kidnapping convictions, holding
that they were incidental to the robberies, but otherwise upheld the remaining convictions and
sentences. State v. James Marvin Martin, C.C.A. No. 1301, 1990 Tenn. Crim. App. LEXIS 482
(Tenn. Crim. App., at Knoxville, July 24, 1990), perm. app. granted (Tenn. 1990). The
Tennessee Supreme Court affirmed the holding on September 23, 1991. State v. Anthony, 817
S.W.2d 299 (Tenn. 1991).

       On June 23, 2003, the petitioner filed a pro se petition for post-conviction relief, averring
that he should be excused from the applicable statute of limitations, which had at that time
expired, and requesting that counsel be appointed to him. On July 25, 2003, the court appointed
counsel to the petitioner and an amended petition was filed, alleging a denial of due process and
ineffective assistance of counsel for failure to challenge the imposition of habitual criminal
status following the dismissal of the aggravated kidnapping convictions.

       The direct appeal opinion recites a succinct summary of the facts underlying the
conviction:
       On the noon hour of February 24, 1986, Anna Marie Johnson observed appellant
       standing on the street looking in the McMillan Insurance office located at 3905
       Asheville Highway in Knoxville. The witness, from her office window, watched
       as appellant pulled a pistol from his coat and entered the insurance office. C.H.
       McMillan, Sr. testified that he was on the phone when appellant approached him
       with a drawn gun. The appellant proceeded to rob McMillan and his secretary,
       Ruth Needham, of $41.00 and $151.00, respectively. As the appellant was
       leaving, he ordered both into the rest room. Upon entering the room, Mr.
       McMillan closed and locked the door. The robber then left, and Mr. McMillan
       crept out and observed the appellant entering his automobile. Mr. McMillan
       identified the appellant as the robber at both a photo lineup and at the trial. It was
       further stipulated at the trial that the car described by Mr. McMillan belonged to
       appellant.
James Marvin Martin, 1990 Tenn. Crim. App. LEXIS 482, at *2.

        The post-conviction court held a hearing on March 11, 2004, in which the petitioner was
the only witness. The petitioner testified that, following his sentencing, trial counsel told him
that she would be unable to conduct his appeal because she would be leaving town and suggested
that he retain new counsel for the appeal. The petitioner stated that trial counsel did, however,
remain as counsel of record and filed the appeal on his behalf, unbeknownst to him.

        The petitioner testified that he was unable to reach trial counsel during this time and,
unaware of the reversal of his kidnapping convictions, allowed the time for filing his post-
conviction petition to expire. He stated that thirteen years after the appeal was filed, he
discovered from a fellow inmate that his kidnapping convictions had been reversed and
thereafter filed his pro se petition for post-conviction relief. Because he was unaware of the
disposition of the appeal or even that it had concluded, the petitioner avers that he had no
reasonable opportunity to file a petition for post-conviction relief and, thus, he should be
excused from the statute of limitations.

        On cross-examination, the petitioner stated that he was aware of his ability to file a post-
conviction petition immediately after his trial. Moreover, the petitioner admitted that he
requested his records from the clerk’s office in 1992, arguably for the purposes of initiating
further proceedings, yet he never filed a post-conviction petition until June 2003. Finally, he
admitted that he took no action to follow up on the appeal himself or to retain new counsel, even
though trial counsel recommended that he do so.

         At the conclusion of the hearing, the post-conviction court dismissed the petition, finding
that it was filed beyond the applicable statute of limitations and that the allegation that the claims
were later arising was without merit. Specifically, the court found that, because the discovery

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rule does not apply, the claim arose on September 23, 1991, the date of the last action of an
appellate court, regardless of the petitioner’s knowledge of the claim’s existence. Bearing this in
mind, the court found that where there was no later arising claim, there was no need to proceed
to the balancing test found in Sands for a further determination of whether the petitioner should
be able to proceed with his claim. Thereafter, the petitioner filed a timely appeal to this court.

                                                     ANALYSIS

        The petitioner contends that the statute of limitations on his post-conviction petition
should be tolled because his due process rights were violated; specifically, the petitioner avers
that because he was unaware of the disposition of his appeal, or even that it had concluded, he
was denied any reasonable opportunity to file for post-conviction relief within the limitations
period. Our supreme court has held that, under some circumstances, constitutional due process
requires that the statutory limitations period for requesting post-conviction relief not be strictly
applied. See Sands v. State, 903 S.W.2d 297 (Tenn. 1995); Burford v. State, 845 S.W.2d 204
(Tenn. 1992). Succinctly stated, the test is whether the time period provides an applicant a
reasonable opportunity to have the claimed issue heard and determined. Burford, 845 S.W.2d at
208. To aid in this determination, a three-step test was formulated in Sands to apply the Burford
rule to specific fact situations; this test was employed by the post-conviction court in the instant
matter and is instructive in this appeal. Under this test, the court should determine: 1) when the
limitations period would normally have begun to run; 2) 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.
Sands, 903 S.W.2d at 301.

        Beginning with the first step, the post-conviction court properly found that the limitations
period began to run on September 23, 1991, the date of the final action of the highest appellate
court to which an appeal was taken. The limitations period would thus expire three years from
that date, on September 23, 1994.1

        The second step is to determine whether the claim actually arose after the limitations
period would have commenced. The post-conviction court found that there was not a later-
arising claim because the petitioner’s claim arose on September 23, 1991, regardless of the
petitioner’s knowledge on that date that the claim existed. The post-conviction court found that,
“We do not operate under a discovery rule theory. His claim arose on September 23rd, 1991.”
We agree with the finding of the post-conviction court.

        This Court has held that the post-conviction statute of limitations does not include an
explicit or implicit discovery rule. Passarella v. State, 891 S.W.2d 619, 624-25 (Tenn. Crim.
App., July 28, 1994) (citing Darrell Eugene Warren v. State, No. 03C01-9210-CR-00372, 1993
          1
            In 1995, the statute of limitations for post-convictions petitions was shortened to one (1) year from the date
of the final action of the highest appellate court to which an appeal was taken; the effective date of the new act was May
10, 1995. However, because the time for the petitioner’s post-conviction petition had expired prior to the effective date
of the amendment, his claim is unaffected by its enactment.

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Tenn. Crim. App. LEXIS 577, at *3 (Tenn. Crim. App., at Knoxville, Aug. 17, 1993), perm. app.
denied (Tenn. 1994)). In Warren v. State, the petitioner contended that the statute of limitations
should have tolled until he learned that certain constitutional violations had occurred; in effect,
the petitioner tried to “superimpose a discovery rule over the post-conviction statute of
limitations.” Warren, 1993 Tenn. Crim. App. LEXIS 577, at *3-4. This Court rejected the
petitioner’s contention and held that a discovery rule cannot be engrafted upon the statute of
limitations, which is wholly statutory and unambiguous in its accrual. Id. at *4; see also Monroe
Brown v. State, No. 01-C-01-9112-CR-00367, 1992 Tenn. Crim. App. LEXIS 659 (Tenn. Crim.
App., at Nashville, Aug. 6, 1992).

        In the instant case, the petitioner’s claim arose on the date of the final action of the
highest appellate court in which an appeal was taken. This is the date from which the statute is
to run, and it cannot be altered merely because the petitioner failed to inquire as to the status of
his case and failed to take any action in pursuance of post-conviction relief within the statutory
period. Therefore, the claim is not “later arising,” and there is no need to proceed to the
balancing test described in step three.

        Due process is not implicated because the petitioner had reasonable opportunity to have
his claim heard. The petitioner testified that he knew of his ability to file a post-conviction relief
petition in 1990 and even spoke with other inmates about filing a post-conviction petition, yet he
failed to do so within the statutory period. Moreover, he requested records from the clerk’s
office in 1992 for the purpose of initiating further proceedings, yet he never took any other
action until June 2003. Finally, the appeals were a matter of public record, thus any information
he desired about the status of his case would have been easily obtainable. Therefore, we agree
with the reasoning of the post-conviction court and affirm the denial of the petitioner’s post-
conviction petition as it is time barred.

        Even if the claim were not time barred, it is without merit. Post-conviction proceedings
may not be used to raise and relitigate issues decided and disposed of on direct appeal. See, e.g.,
State v. Wright, 475 S.W.2d 546 (Tenn. 1972); Long v. State, 510 S.W.2d 83 (Tenn. Crim. App.
1974). The petitioner averred that his trial counsel was ineffective in failing to challenge his
habitual offender status when his kidnapping convictions were overturned. However, this Court
explicitly stated in its direct appeal that,
        The armed robbery cases were the triggering offenses sustaining the jury verdict
        finding appellant in both instances to be a habitual offender . . . . There is more
        than sufficient evidence to sustain appellant’s two convictions of armed robbery
        and its enhanced punishment for being an habitual offender to confinement for
        life. Thus, the appellant’s two convictions for armed robbery and confinement as
        an habitual criminal for two concurrent life sentences are affirmed.
James Marvin Martin, 1990 Tenn. Crim. App. LEXIS 482, at *3 and *5.




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               Therefore, this Court determined that the reversal of the aggravated kidnapping
charges had no bearing on the petitioner’s status as a habitual offender. Thus, the petitioner’s
allegations against his trial counsel were not cognizable in a post-conviction proceeding.

                                             Conclusion

               Based on the foregoing and the record as a whole, the post-conviction court’s
dismissal of the petition is affirmed.




                                                    ____________________________________
                                                      JOHN EVERETT WILLIAMS, JUDGE




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