         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs February 5, 2008

                 GREGORY MORROW v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Shelby County
                         No. 01-11992    James C. Beasley, Jr., Judge



                      No. W2007-01166-CCA-R3-PC - Filed June 25, 2008


The petitioner, Gregory Morrow, appeals the Shelby County Criminal Court’s denial of his petition
for post-conviction relief from his conviction of possession of 300 grams or more of cocaine with
intent to sell and two counts of possession of marijuana and resulting fifteen-year sentence to the
Department of Correction. He claims that he is entitled to post-conviction relief because he was
denied the effective assistance of counsel at trial. We hold that his petition was not filed timely and
is therefore barred by the one-year statute of limitations, and we vacate the judgment denying post-
conviction relief and remand the case for entry of an order of dismissal.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment Vacated, Case Remanded

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY
L. SMITH , JJ. joined.

Vicki M. Carriker, Memphis, Tennessee, for the appellant, Gregory Morrow.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Pamela Fleming, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

        This court affirmed the petitioner’s convictions on September 13, 2004. The Tennessee
Supreme Court denied his application for permission to appeal on February 28, 2005. State v.
Gregory Morrow, No. W2003-02401-CCA-R3-CD, Shelby County (Tenn. Crim. App. Sept. 13,
2004). The petitioner filed the present post-conviction action on March 22, 2006, having given the
petition to prison authorities for mailing on March 15, 2006.

        The state claims for the first time on appeal that this court does not have jurisdiction over this
case because the petitioner filed his post-conviction petition outside the one-year statute of
limitations provided in Tennessee Code Annotated section 40-30-202(a). The state contends that
the one-year period for filing the petition began to run on February 28, 2005, when the supreme court
denied his application for permission to appeal. The petitioner has not responded to the state’s
claim.

        Code section 40-30-102(a) is the controlling authority with regard to the statute of limitations
for post-conviction petitions. It provides that

                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. Time is of the essence of the
                right to file a petition for post-conviction relief . . . and the one-year
                limitations period is an element of the right to file the action and is a
                condition upon its exercise.

The “one-year statutory period is an element of the right to file a post-conviction petition and . . . is
not an affirmative defense that must be asserted by the State.” State v. Nix, 40 S.W.3d 459, 464
(Tenn. 2001); see Chesley Randell Thompson v. State, No. E2002-00580-CCA-R3-PC, Blount
County (Tenn. Crim. App. June 3, 2003) (dismissing petitioner’s post-conviction petition as
untimely when statute of limitations issue raised for first time on appeal by the state), app. denied
(Tenn. Oct. 6, 2003). If a petitioner files a petition for post-conviction relief outside the one-year
statute of limitations, a court may still consider it if (1) a new constitutional right has been
recognized; (2) the petitioner’s innocence has been established by new scientific evidence; or (3) a
previous conviction that enhanced the petitioner’s sentence has been held to be invalid. T.C.A. §
40-30-202(b)(1)-(3). A court may also consider an untimely petition for post-conviction relief if
applying the statute of limitations would deny the petitioner due process. Burford v. State, 845
S.W.2d 204, 208 (Tenn. 1992); see, e.g., Seals v. State, 23 S.W.3d 272 (Tenn. 2000) (holding that
due process mandates the tolling of the statute of limitations under the 1995 Sentencing Act during
periods of a petitioner’s mental incompetence).

        Code section 40-30-102(a) specifically states that the one-year statute of limitations begins
to run from “the date of the final action of the highest state appellate court to which an appeal is
taken.” Thus, the statute of limitations in the present case began to run on February 28, 2005, when
the Tennessee Supreme Court denied the petitioner’s application for permission to appeal. Because
the petitioner filed his petition for post-conviction relief more than one year later, it was barred by
the statute of limitations. Additionally, nothing in the record indicates that the petitioner’s claim
would satisfy any of the three exceptions to the post-conviction statute of limitations set forth in
Code section 40-30-102(b). Further, nothing in the record indicates that due process requires tolling
of the statute of limitations.

        Because the petitioner’s claim was not filed within the limitations period and there is no
indication that any exception applies, this court is without jurisdiction to consider his appeal on its

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merits. See T.C.A. § 40-30-202(b). In consideration of the foregoing, we vacate the judgment of
the trial court and remand the case for entry of an order of dismissal.



                                                    ___________________________________
                                                    JOSEPH M. TIPTON, PRESIDING JUDGE




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