         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                     ANWAR PROBY v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                            No. 98-02267 John T. Fowlkes, Judge



                   No. W2008-00700-CCA-R3-PC - Filed October 27, 2008


The petitioner, Anwar Proby, appeals the Shelby County Criminal Court’s dismissal of his petition
for post-conviction relief as time-barred. On appeal, the petitioner characterizes his petition as a
motion to reopen and argues that it was timely filed because it was filed within one year of our
supreme court’s holding in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (“Gomez II), which the
petitioner claims announced a new rule of law that is entitled to retroactive application. The State
has filed a motion requesting that this court affirm the post-conviction court’s dismissal pursuant to
Rule 20 of the Rules of the Court of Criminal Appeals. Review of the record indicates that the
petition in this case was not a motion to reopen but, rather, the first petition for post-conviction relief
filed in this case. Because the petitioner has failed to establish that the petition was timely filed or
that a recognized exception to the rule applies, we grant the State’s motion and affirm the judgment
of the Shelby County Criminal Court.

 Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of
                            the Court of Criminal Appeals

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ. joined.

Anwar Proby, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter, and Matthew Bryant Haskell, Assistant
Attorney General, for the appellee, the State of Tennessee.


                                    MEMORANDUM OPINION

       While the underlying facts supporting the convictions in the petitioner’s three cases are not
evident from the record before us, it is established that the petitioner was convicted on July 11, 2001,


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of three Class A felonies, one count of facilitation to commit first degree murder and two counts of
especially aggravated kidnapping. He was subsequently sentenced to an effective fifteen-year
sentence, to be served as a violent offender. Almost seven years later, on February 18, 2008, the
petitioner filed a pro se “Petition for Post-Conviction Relief,” in which he alleged that he was denied
his right to the effective assistance of counsel, that he was convicted while incompetent, and that his
sentence was not consistent with the Tennessee Supreme Court’s decision in Gomez II.

        According to the petition, the petitioner did not file a direct appeal, and the petition was the
first post-conviction petition filed in the case. However, in his Memorandum of Law in Support of
Motion for Post-Conviction, the petitioner referred to his petition as a “Motion to Reopen Post-
Conviction Petition” and stated he was entitled to relief pursuant to Tennessee Code Annotated
section 40-30-117(a)(1). The petitioner based this contention on his assertion that Gomez II
announced a new rule of constitutional law not recognized at the time of his convictions. The post-
conviction court dismissed the petition as untimely on February 22, 2008.

        On appeal, the petitioner asserts that the post-conviction court erred in dismissing his petition
as time-barred. Specifically, he contends that the petition was timely, as it was actually a “Petition
to Reopen Post-Conviction” filed pursuant to Tennessee Code Annotated section 40-30-117(a)(1),
which provided a statute of limitations of one year from the date the new constitutional rule of law
was announced. Gomez II, which the petitioner relies upon, was filed October 9, 2007, and he filed
the instant petition within one year from that date.

       However, the petitioner’s assertion that the instant petition be treated as a motion to reopen
is misplaced. Tennessee Code Annotated section 40-30-117 provides that:

        (a) A petitioner may file a motion in the trial court to reopen the first post-conviction
            petition only if the following applies:
                (1) The claim in the motion is based upon a final ruling of an appellate
                    court establishing a constitutional right that was not recognized as
                    existing at the time of trial, if retroactive application of that right is
                    required. . . .

T.C.A. § 40-30-117(a)(1) (2006). Application of this statute, however, presupposes the filing of a
prior timely petition for post-conviction relief. The record does not establish that a prior petition was
ever filed in this case. The petitioner himself acknowledges that the instant petition was the first
petition filed seeking post-conviction relief, and we find nothing in the record of the case or the
records of this court which indicates that a prior petition was filed. Thus, the petition filed must be
treated as a petition seeking post-conviction relief.

        Pursuant to Tennessee Code Annotated section 40-30-102, a petition for post-conviction
relief must be filed within one year of the final action of the highest state appellate court to which
an appeal is taken, or, if no appeal is taken, within one year of the date on which the judgment
became final or consideration of the petition is barred. T.C.A. § 40-30-102(a) (2006). A post-


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conviction court does not have jurisdiction to consider a petition filed outside the one-year statute
of limitations unless: (1) the claim is based on a final appellate court ruling establishing a
constitutional right not recognized at the time of trial but given retroactive effect by the appellate
court; (2) the claim is based upon new scientific evidence establishing that the petitioner is actually
innocent; or (3) the claim is based upon sentences that were enhanced because of a previous
conviction and the previous conviction was subsequently found to be illegal. Id. at (b)(1)-(3).

         In this case, as no direct appeal was filed, the judgments of conviction became final thirty
days after they were entered on July 11, 2001. Thus, the petitioner had until August 10, 2002, to file
a petition for post-conviction relief, unless one of the recognized exceptions is established. As an
aside, we note that, even if the petitioner were able to establish the existence of a recognized
exception to the statute of limitations, only the issue giving rise to the exception, here the sentencing
issue discussed in Gomez II, would have been reviewable. The remaining substantive issues raised
by the petitioner, such as ineffective assistance of counsel, would have remained barred by the statute
of limitations.

        The only exception which is potentially applicable in this case is the new rule of
constitutional law, which the petitioner does allege pursuant to section 40-30-117. However,
contrary to the petitioner’s contention, the rule in Gomez II is not a new rule but rather a clarification
of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). See Gomez
v. State, 163 S.W.3d 632, 648-51 (Tenn. 2005) (“Gomez I”). Because the constitutional right in
question in this case was recognized at the time of the petitioner’s convictions in 2001, he is not
entitled to tolling under subsection (b)(1). Having concluded that the petition was not timely filed
and that no recognized exception applies, the petition was properly dismissed as time-barred.

                                           CONCLUSION

        Based upon the foregoing, we affirm the decision of the Shelby County Criminal Court.




                                                        ______________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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