         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


               ULYSSES RICHARDSON v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                           No. 84-01275 Joseph B. Dailey, Judge



                      No. W2006-01856-CCA-R3-PC - Filed May 24, 2007




The Petitioner, Ulysses Richardson , appeals the trial court's denial of his petition for post-conviction
relief. The State has filed a motion requesting that this Court affirm the trial court's denial of relief
pursuant to Rule 20, Rules of the Court of Criminal Appeals. The petition for post-conviction relief
fails as it is a second such petition and as it is barred by the statute of limitations. The petition
similarly fails if considered as a petition for habeas corpus relief, a motion to reopen a petition for
post-conviction relief or a petition for writ of error coram nobis. Accordingly, we grant the State's
motion and affirm the judgment of the lower court.

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

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN EVERETT
WILLIAMS, JJ., joined.

Brett B Stein, Memphis, Tennessee, for the appellant, Ulysses Richardson.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Renee W.
Turner, Assistant Attorney General; William L. Gibbons, District Attorney General; and Betsy
Carnesale, Assistant District Attorney General, for the appellee, State of Tennessee.



                                   MEMORANDUM OPINION


        The Petitioner Ulysses Richardson was convicted of two counts of first degree murder. For
these offenses, he received consecutive life sentences, each of which was enhanced by an additional

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five years because a firearm was employed in the commission of the offenses. See State v. Ulysses
Richardson, No. 54 (Tenn. Crim. App., at Jackson, May 15, 1985), perm. to appeal denied, (Tenn.
Sept. 9, 1985). His convictions and sentences were affirmed on direct appeal. On June 27, 1989,
the Petitioner sought post-conviction relief, alleging that trial counsel was ineffective. See Ulysses
Richardson v. State, No. 02C01-9303-CR-00038 (Tenn. Crim. App., at Jackson, Jul. 13, 1994),
perm. to appeal denied, (Tenn. Nov. 7, 1994). The lower court dismissed the petition as barred by
the statute of limitations. Notwithstanding, the lower court found that trial counsel was not
ineffective. On direct appeal, this Court held that the petition was timely filed. Id. However, the
judgment of the lower court was affirmed as to the conclusion that trial counsel was effective. Id.


         On March 16, 2006, the Petitioner filed a document captioned “Petition for Post-Conviction
Relief and/or for a Writ of Error Coram Nobis and/or for a Writ of Habeas Corpus.” While
acknowledging that this constituted a second petition, the Petitioner stated that “the issues raised in
this petition are new grounds that were not raised in the [P]etitioner’s previous petition.” As grounds
for relief, he asserted that “the sentences of the petitioner to two life sentences to run consecutive
were so grossly disproportionate that the petitioner’s due process rights . . . were violated. The trial
court did not consider the issue of disproportion[ality] at the sentencing as such issue was not
raised.” Additionally, the Petitioner claimed that the consecutive sentences imposed by the trial
court “violated the doctrine in Blakely [v. Washington] in that the criteria as whether or not the
sentence should have been run consecutively or [con]currently should have been submitted to the
jury with proper jury instruction at the end of the case.” By order entered July 21, 2006, the trial
court summarily dismissed the petition as barred by the applicable statute of limitation. A
subsequent order was entered on August 22, 2006, in which the lower court clarified its July 21,
2006, order by making the following findings of fact and conclusions of law:
       . . . the Court is of the opinion that these issues should have been raised at the trial
       level and that there are not any new issues raised which would allow the Court to
       consider granting relief as prayed for by the petitioner.
       . . . as to the violation of the Blakely doctrine and the Court is of the opinion that
       Blakely is not to be applied retroactively.
The Petitioner filed a notice of appeal document on August 25, 2006.


         On appeal to this Court, the Petitioner asserts that the post-conviction court erred by
summarily dismissing the petition. He asserts that a petitioner should be given the opportunity to
attack his sentence at any time if it can be shown that the petitioner’s due process rights were
violated in the sentencing procedure.. The State has filed a motion requesting that this Court affirm
the lower court’s denial of post-conviction relief pursuant to Rule 20, Rules of the Tennessee Court
of Criminal Appeals. As basis for its motion, the State asserts that the petition is time-barred. The
State further asserts that the Petitioner’s claims do not satisfy the statutory exceptions to the timely
filing requirement.




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                                          1. Post-Conviction


        Pursuant to Tennessee Code Annotated section 40-30-102(a), a person in custody under a
sentence of a court of this state must petition for post-conviction relief within one 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 year of the date on which the judgment becomes final. The statute emphasizes that
“[t]ime is of the essence of the right to file a petition for post-conviction relief or motion to reopen
established by this chapter, and the one-year limitations period is an element of the right to file such
an action and is a condition upon its exercise.” T. C. A.§ 40-30-102(a). Additionally, section 40-30-
102(c) of the Tennessee Code Annotated states that the Post-Conviction Act contemplates the filing
of only one (1) petition for post-conviction relief.


        While due process dictates that the statute of limitations not be so strictly applied as to deny
a person the opportunity to have his claim heard and determined at a meaningful time and in a
meaningful manner, State v. McKnight, 51 S.W.3d 559 (Tenn. 2001); Seals v. State, 23 S.W.3d 272
(Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992), the exceptions to the statute of
limitations are explicitly limited, i.e., (1) claims based upon a new rule of constitutional law
applicable to a petitioner's case, (2) claims based upon new scientific evidence showing innocence,
and (3) claims based upon enhanced sentences that were enhanced because of convictions
subsequently found to be illegal. See T.C.A. § 40-30-102(b)(1)- (3).

         In the present case, Petitioner argues that he is entitled to post-conviction relief based on his
allegation that the trial court imposed the consecutive life sentences in violation of due process and
in violation of Blakely v. Washington. We cannot conclude that these particular factual
circumstances toll the limitations period. The Petitioner’s post-conviction petition was not filed until
March 16, 2006, well beyond the one-year statute of limitations. Additionally, this Court has
previously held that Apprendi/Blakely type issues regarding allocating fact-finding authority to
judges during sentencing are not in the narrow class of procedural rules that apply retroactively. See
Isaac Herron v. State, No. W2004-02533-CCA-R28-PC (Tenn. Crim. App., at Jackson, Nov. 22,
2004)(order). Accordingly, the grounds for relief alleged by Petitioner do not fall within any of the
exceptions to the statute of limitations. Where there is no applicable exception, “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.” T.C.A. § 40-30-102(a). Accordingly, Petitioner has failed
to state a cognizable claim for post-conviction relief. The trial court properly denied post-conviction
relief.


                                       II. Habeas Corpus Relief


        The determination of whether to grant habeas corpus relief is a question of law. McLaney v.
Bell, 59 S.W.3d 90, 92 (Tenn. 2001), overruled in part by, Summers v. State, 212 S.W.3d 251 (Tenn.
2007). The Tennessee Constitution guarantees a convicted criminal defendant the right to seek

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habeas corpus relief. See Tenn. Const. art. I, § 15. However, the grounds upon which habeas corpus
relief will be granted are very narrow. Taylor v. State, 995 S.W.2d 78, 83 (Tenn. 1999). A petition
for habeas corpus relief may only be granted when the judgment is shown to be void, rather than
merely voidable. Id. A judgment is void only when it appears upon the face of the judgment or the
record of the proceedings upon which the judgment is rendered that the convicting court was without
jurisdiction or authority to sentence a defendant or that a defendant's sentence has expired. Archer
v. State, 851 S.W.2d 157, 164 (Tenn. 1993). On the other hand, a voidable judgment or sentence is
one which is facially valid and which requires evidence beyond the face of the judgment or the
record of the proceedings to establish its invalidity. Taylor, 995 S.W.2d at 83.


        Again, the Petitioner raised two allegations (1) his sentences are disproportionate and (2) his
sentences were imposed in violation of Blakely v. Washington. Both of these claims fail.
Specifically, both arguments fail because even if the allegations are true, such allegations would
render the judgment voidable, and not void, unless the face of the record establishes that the trial
court did not have jurisdiction to convict or sentence the Petitioner. Accordingly, the Petitioner has
failed to establish his entitlement to habeas corpus relief.


                                          III. Coram Nobis
       Relief by petition for writ of error coram nobis is provided for in Tennessee Code Annotated
section 40-26-105. That statute provides, in pertinent part:

       The relief obtainable by this proceeding shall be confined to errors dehors the record
       and to matters that were not or could not have been litigated on the trial of the case,
       on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error,
       or in a habeas corpus proceeding. Upon a showing by the defendant that the
       defendant was without fault in failing to present certain evidence at the proper time,
       a writ of error coram nobis will lie for subsequently or newly discovered evidence
       relating to matters which were litigated at the trial if the judge determines that such
       evidence may have resulted in a different judgment, had it been presented at the trial.
       The issue shall be tried by the court without the intervention of a jury, and if the
       decision be in favor of the petitioner, the judgment complained of shall be set aside
       and the defendant shall be granted a new trial in that cause.
T.C.A. § 40-26-105. The writ of error coram nobis is an “extraordinary procedural remedy,” filling
only a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999). The
“purpose of this remedy ‘is to bring to the attention of the court some fact unknown to the court
which if known would have resulted in a different judgment.’ “ State v. Hart, 911 S.W.2d 371, 374
(Tenn. Crim. App. 1995) (quoting State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 167
(1966)). A petition for writ of error coram nobis must usually be filed within one (1) year after the
judgment becomes final. See T.C.A. § 27-7-103; Mixon, 983 S.W.2d at 670.




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       We conclude that the trial court did not err in denying the petition if considered as an
application for writ of error coram nobis. A petition for writ of error coram nobis must be filed
within one year of the time judgment becomes final in the trial court. See T.C.A. § 27-7-103. It is
obvious that the Petitioner's petition was filed many years after the statute of limitations had run.
Nothing in the record suggests that the Petitioner's claim for relief implicates any due process
concerns that would require a remand to the trial court for a hearing on the merits. See Workman v.
State, 41 S.W.3d 100 (Tenn. 2001). We conclude that the trial court did not err by summarily
dismissing the petition.




        When an opinion would have no precedential value, the Court of Criminal Appeals may
affirm the judgment or action of the trial court by memorandum opinion when the judgment is
rendered or the action taken in a proceeding without a jury and such judgment or action is not a
determination of guilt, and the evidence does not preponderate against the finding of the trial judge.
See Tenn. R. Ct. Crim. App. 20. We conclude that this case satisfies the criteria of Rule 20.
Accordingly, it is ordered that the State's motion is granted. The judgment of the trial court is
affirmed in accordance with Rule 20, Rules of the Court of Criminal Appeals.




                                                      ___________________________________
                                                                           J.C. MCLIN, JUDGE




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