            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                    FILED
                                AT KNOXVILLE                      August 10, 1999

                                                                 Cecil Crowson, Jr.
                             MARCH 1999 SESSION                  Appellate C ourt
                                                                     Clerk



ALONZO C. WILLIAMS,            *    C.C.A. # 03C01-9806-CR-00203

      Appellant,               *    KNOX COUNTY

VS.                            *    Hon. Mary Beth Leibowitz, Judge

STATE OF TENNESSEE,            *    (Post-Conviction)

      Appellee.                *




For Appellant:                      For Appellee:

Alonzo C. Williams, pro se          John Knox Walkup
c/o B.M.C.X.                        Attorney General and Reporter
P.O. Box 2000
Wartburg, TN 37887                  Ellen H. Pollack
                                    Assistant Attorney General
                                    Criminal Justice Division
                                    425 Fifth Avenue North
                                    Nashville, TN 37243

                                    Randall E. Nichols
                                    District Attorney General
                                    City-County Building
                                    Knoxville, TN 37902




OPINION FILED:__________________________



AFFIRMED



GARY R. WADE, PRESIDING JUDGE
                                              OPINION



                The petitioner, Alonzo C. Williams, appeals the trial court's dismissal of

his petition for post-conviction relief, his third in the last fourteen years. In this

appeal of right, the single issue presented for review is whether the petition was

barred by the statute of limitations.



                The judgment of the trial court is affirmed.



                On November 22, 1983, the petitioner was convicted of two counts of

third degree burglary after an alarm led to his discovery in an elevator shaft utilized

by both the Southern Railway Salvage Company and the Southern Kitchen Supply

Company in Knoxville. Because the petitioner had several prior felony convictions, 1

including at least one offense in South Carolina which was relied upon by the state

as one of the three requisite predicate offenses, he was declared a habitual criminal.

In consequence, each of the burglary sentences was enhanced to life terms. On

direct appeal, the conviction was affirmed. State v. Alonzo Clinton Williams, No.

980 (Tenn. Crim. App., at Knoxville, Nov. 20, 1984).



                In 1985, the petitioner filed a petition for post-conviction relief alleging

the ineffective assistance of counsel at trial. After a full evidentiary hearing, the trial

court denied relief. This court affirmed. Alonzo Williams v. State, No. 1100 (Tenn.

Crim. App., at Knoxville, Mar. 4, 1987). Application for permission to appeal was

denied. See Alonzo Clinton Williams v. State, No. 1283 (Tenn. Crim. App., at

Knoxville, Feb. 27, 1990).



        1
         The record indicates that four Tennessee convictions were utilized by the state in the habitual
criminal proceeding.

                                                   2
              A second petition filed in 1988 in which the petitioner challenged the

validity of a 1980 guilty plea to larceny in excess of $200 was also denied. Alonzo

Clinton Williams v. State, No. 03C01-9110-CR-00331 (Tenn. Crim. App., at

Knoxville, Apr. 23, 1992). Application for permission to appeal was denied July 6,

1992. The third petition was filed on April 1, 1998. The trial court dismissed the

petition as barred by the statute of limitations.



              The original Post-Conviction Procedure Act of 1967 did not include a

statute of limitations. Effective July 1, 1986, the General Assembly adopted a

three-year statute of limitations. Tenn. Code Ann. § 40-30-102 (repealed 1995). In

consequence, any petitioner whose judgment had become final before July 1, 1986,

had only three years thereafter to file a petition for post-conviction relief. State v.

Masucci, 754 S.W.2d 90 (Tenn. Crim. App. 1988).



              In 1995, our legislature passed the new Post-Conviction Procedure Act

which is applicable to all petitions filed after May 10, 1995. It shortened the statute

of limitations to one year:

              (a) Except as provided in subsections (b) and (c), a
              person in custody under a sentence of a court of this
              state must petition for post-conviction relief under this
              part 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. The
              statute of limitations shall not be tolled for any reason,
              including any tolling or saving provision otherwise
              available at law or equity. ... Except as specifically
              provided in subsections (b) and (c), the right to file a
              petition for post-conviction relief or a motion to reopen
              under this chapter shall be extinguished upon the
              expiration of the limitations period.

Tenn. Code Ann. § 40-30-201(a).




                                            3
               Under Tenn. Code Ann. § 40-30-202(b), courts may not consider a

petition for post-conviction relief if it is filed outside the one-year statute of limitations

unless "(1) [t]he claim in the petition is based upon a final ruling of an appellate

court establishing a constitutional right that was not recognized at the time of trial, if

retrospective application of that right is required ...; (2) [t]he 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)

[t]he 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...."



               The issues raised by the petitioner in his third petition pertain to

whether he was properly found to be a habitual criminal. He claims that the state

improperly relied upon one or more of the South Carolina offenses which were more

than ten years old; that he was not represented by effective counsel in one or more

of the prior proceedings which resulted in convictions; that he was denied juvenile

transfer hearings in 1963 and 1964 convictions; and that he was denied his

constitutional right to due process and equal protection.



               The trial court dismissed the petition because the grounds raised had

been previously determined and because the statute of limitations barred further

post-conviction review.



               In 1983, when the petitioner was found to be a habitual criminal, the

definition was as follows:

               Any person who has either been three (3) times
               convicted within this state of felonies, not less than two

                                              4
              (2) of which are among those specified in §§ 39-2-103,
              39-605 [repealed], 39-2-111, 39-2-112, 39-2-640, 39-6-
              417(a)(1)(A), 40-20-112 or were for a crime punishable
              by death under existing law, but for which the death
              penalty was not inflicted, or who has been three (3) times
              convicted under the laws of any other state, government
              or country of crimes, not less than two (2) of which, if
              they had been committed in this state, would have been
              among those specified ... shall be considered, for the
              purposes of this part, and is declared to be an habitual
              criminal, provided that petit larceny shall not be counted
              as one of such three (3) convictions, but is expressly
              excluded; and provided, further that each of such three
              (3) convictions shall be for separate offenses, committed
              at different times, and on separate occasions.

Tenn. Code Ann. § 39-1-801 (1982 Repl.).



              Here, the petition is clearly time-barred under both the three-year and

one-year statutes of limitations. Furthermore, there are other procedural obstacles

which would restrict any review of the merits of the petitioner's claims. See

generally, State v. Prince, 781 S.W.2d 846 (Tenn. 1989) (a petitioner must establish

the invalidity of the predicate offenses before he can attack a habitual criminal

sentence); and House v. State, 911 S.W.2d 705 (Tenn. 1995) (concepts of waiver

and previous determination under Tenn. Code Ann. § 40-30-112(a), repealed in

1995, may constitute procedural bars in a post-conviction claim). Finally, there is no

time limit on the underlying convictions which would support a determination of

habitual criminality. State v. Sullivan, 644 S.W.2d 429 (Tenn. Crim. App. 1982).



              Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Presiding Judge




                                           5
CONCUR:



_____________________________
Norma McGee Ogle, Judge



_____________________________
Cornelia A. Clark, Special Judge




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