         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                      FRED ZONGE v. STATE OF TENNESSEE

                    Direct Appeal from the Circuit Court for Obion County
                        No. 08-CR-160     William B. Acree, Jr., Judge



                   No. W2008-01930-CCA-R3-PC - Filed January 23, 2009


The petitioner, Fred Zonge, appeals the Obion County Circuit Court’s summary dismissal of his
petition for post-conviction relief as time-barred. On appeal, the petitioner argues that due process
tolled the statute of limitations based upon 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
constitutional law, and the United States Supreme Court’s holding in Danforth v. Minnesota, ___
U.S. ___, 128 S. Ct. 1029 (2008), which changed the standard for determining if new rules of law
were 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. 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
Obion County Circuit 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.

Fred Zonge, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter, and Leslie E. Price, Assistant Attorney General,
for the appellee, the State of Tennessee.


                                   MEMORANDUM OPINION

        In March 1994, the petitioner was convicted by an Obion County jury of especially
aggravated kidnapping, especially aggravated burglary, aggravated assault, and theft of property over
$1000. He was subsequently sentenced as a Range II offender to an effective sentence of thirty-five
years in the Department of Correction. On direct appeal, a panel of this court affirmed the
petitioner’s convictions but modified his conviction for especially aggravated burglary to aggravated
burglary. State v. Zonge, 973 S.W.2d 250 (Tenn. Crim. App. 1997), perm. app. denied (Tenn., July
13, 1998).

         On July 28, 2008, the petitioner filed the instant pro se petition seeking post-conviction
relief. In the petition, the petitioner asserted that the enhancement of his sentence violated the Sixth
Amendment to the United States Constitution as interpreted by Gomez II. According to the
petitioner, Gomez II announced a new rule of constitutional law which was entitled to retroactive
application. On August 7, 2008, the post-conviction court summarily dismissed the petition after
determining that it was barred by the statute of limitations. The petitioner now appeals.

                                               Analysis

        At the time the offenses were committed in this case, the Post-Conviction Procedure Act
provided that any petition for post-conviction relief must be filed within three years of the date of
the final action of the highest appellate court to which an appeal was taken or such petition would
be barred. T.C.A. 40-30-102 (1994). The statute was amended in 1996 to reflect a statute of
limitations of one year. T.C.A. § 40-30-102(a) (2006). However, due process dictates that the
statute of limitations not be so strictly applied so 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); Burford v. State, 845 S.W.2d 204 (Tenn. 1992). However, the
exceptions to the statute of limitations are explicitly limited to the following circumstances:

       (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 which were enhanced because of
           convictions subsequently found to be illegal.

T.C.A. § 40-30-102(b)(1)-(3). Unless one of the enumerated exceptions applies, a court does not
have jurisdiction to consider an untimely petition. T.C.A. § 40-30-102(b).

        The petitioner acknowledges that his petition was filed outside the applicable statute of
limitations but argues that due process suspends the rule because he was precluded from previously
bringing the claim. In his petition, he relied upon Gomez II, which he claims “issued a new state rule
of constitutional law when it held that the ‘Reform Act’ offended the Sixth Amendment to the
United States Constitution.” For the first time on appeal, he further argues that he was barred from
bringing his post-conviction claim regarding this right, established in Apprendi v. New Jersey, until
the Supreme Court, in Danforth v. Minnesota, 128 S. Ct. 1029 (2008), held that the states were no
longer required to apply the retroactive standard of Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060
(1989), to new federal rules. He argues that his claim was timely filed as it was filed within one
year of the Danforth decision because, until that point, he had no legal standing to bring a claim.
He contends that the standard for retroactivity is now governed by Tennessee Code Annotated
section 40-30-122 (2006).


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        We must reject the petitioner’s argument with regard to due process excusing his untimely
filing. Our courts have repeatedly held that neither Cunningham v. California, 549 U.S. 270, 127
S. Ct. 856 (2007) nor Gomez II established a new constitutional rule which would entitle the
petitioner to file a post-conviction petition outside the statute of limitations. Gomez v. State, 163
S.W.3d 632, 648-51 (Tenn. 2005) (“Gomez I”). Rather, the rule in Gomez II is a clarification of the
rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).

        The petitioner was convicted prior to the decision in Apprendi, which was decided on June
26, 2000. In that case, “the Supreme Court announced a new constitutional rule of criminal
procedure by holding that ‘[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury, and
proved beyond a reasonable doubt.’” In re Clemmons, 259 F.3d 489, 491 (6th Cir. 2001)(quoting
Apprendi, 530 U.S. at 491, 120 S. Ct. at 2362-63); see also United States v. Sanders, 247 F.3d 139,
147 (4th Cir. 2001) (holding that “Apprendi is certainly a new rule of criminal procedure”); United
States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001) (holding that “Apprendi is obviously a ‘new
rule’”). However, the great weight of authority has held that “Apprendi is not the type of watershed
rule of criminal procedure that qualifies for retroactive application under the second exception.”
Dukes v. United States, 255 F.3d 912, 913 (8th Cir. 2001) (holding that “Apprendi presents a new
rule of constitutional law that is not of ‘watershed’ magnitude and, consequently, petitioners may
not raise Apprendi claims on collateral review”); Sanders, 247 F.3d at 151 (holding that “the new
rule announced in Apprendi does not rise to the level of a watershed rule of criminal procedure
which ‘alter[s] our understanding of the bedrock elements essential to the fairness of a
proceeding’”); McCoy v. United States, 266 F.3d 1245, 1257 (11th Cir. 2001) (agreeing with the
other circuits that “Apprendi is not sufficiently fundamental to fall within Teague’s second
exception”). Accordingly, the new constitutional rule announced in Apprendi did not apply
retroactively on collateral review. Likewise, this court has previously held that the clarification of
the rule in the subsequent cases of Blakely and Gomez II was also not entitled to retroactive
application. See Schiriro v. Summerlin, 542 U.S. 348, 353 (2004); see also Timothy R. Bowles v.
State, No. M2006-01685-CCA-R3-HC (Tenn. Crim. App., at Nashville, May 1, 2007).

        Thus, we agree with the petitioner, based upon the above applicable law, that he did, in fact,
lack standing to bring his claim. However, the petitioner’s argument with regard to the standard for
determining retroactivity of a new rule also fails to entitle him to relief. Even if we accept the
petitioner’s contention that Tennessee Code Annotated section 40-30-122 governs our determination
of whether a new rule should be retroactively applied, the petitioner’s argument fails, as this court
has previously held that, pursuant to that statute, Blakely violations are not permitted retroactive
application in post-conviction proceedings. State v. William J. Carico, No. E2004-02231-CCA-R3-
PC (Tenn. Crim. App., at Knoxville, July 5, 2005).

        Thus, because the petition in this case was not timely filed and no recognized exception to
the statute of limitations applies, the petition was properly dismissed. The petitioner’s argument that
the post-conviction court should have, at a minimum, held a hearing on the petition is also without
merit. Tennessee Code Annotated section 40-30-106(b) expressly provides that if it is plainly

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apparent from the face of the petition for post-conviction relief that the petition was not filed within
the time set forth in the statute of limitations, the trial court “shall” enter an order dismissing the
petition.

                                          CONCLUSION

       Based upon the foregoing, the decision of the Obion County Circuit Court is affirmed
pursuant to Rule 20, Rules of the Court of Criminal Appeals.




                                                     ______________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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