        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs January 13, 2010

        MATTHEW MELTON JACKSON v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Sumner County
                          No. 795-2009     Dee David Gay, Judge



                    No. M2009-02000-CCA-R3-PC - Filed April 29, 2010


On August 10, 2001, Petitioner, Matthew Melton Jackson, pled guilty in Sumner County
Circuit Court to four counts of aggravated robbery. The trial court sentenced Appellant to
four, ten-year sentences to be served concurrently with each other, but consecutively to a
previous sentence. On August 7, 2009, Petitioner filed a Petition for Post-conviction Relief
arguing that a decision of this Court rendered after the entry of his guilty plea created a
constitutional right that should be given retroactive application. Alternatively, he also argues
that his incarceration in another state required a tolling of the statute of limitations. The post-
conviction court summarily dismissed his petition. After a thorough review of the record,
we affirm the dismissal of his petition.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVID H. W ELLES, and
R OBERT W. W EDEMEYER, JJ, JOINED.

Matthew Jackson, Pro Se, Tiptonville, Tennessee

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Lawrence Ray Whitley, District Attorney General, and Ron Blanton, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                                      Factual Background

       The post-conviction court set out the following facts in its order dismissing
Petitioner’s second petition for post-conviction relief:
       1.     Petitioner was convicted on August 10, 2001, after entering guilty pleas
              on two (2) counts and best interest pleas on two (2) counts of
              Aggravated Robbery. He was given four (4) concurrent ten (10) year
              sentences to serve at the Tennessee Department of Correction at 30%.
              These four (4) convictions ran concurrently with each other but
              consecutively to a Robertson County case.
       2.     On March 24, 2003, this Court denied Petitioner’s “Motion for Further
              Relief and Modification of Judgment”, and noted in the Order that “no
              appeal was taken and no activity has occurred in this matter since the
              plea in August 2001[”]; . . .
       3.     On May 30, 2003, the Criminal Court of Appeals dismissed Petitioner’s
              appeal stating that “appellant has failed to plausibly explain why he did
              not timely file a notice of appeal . . . this Court has not been presented
              with sufficient information to find that the waiver of the notice of
              appeal is appropriate in this instance.”; . . .
       4.     On June 17, 2003, this court denied Petitioner’s “Motion to Vacate
              and/or Relief from Judgment” – specifically stating in the order of
              denial that “Defendant attempts to raise the issue of ineffective
              assistance of counsel . . . even if the Court were to treat this Motion as
              a Petition for Post-Conviction Relief, the same is time-barred due to the
              fact that more than a year has elapsed . . .”; . . .
       5.     On July 14, 2003, this Court denied Petitioner’s “Motion to Reconsider
              Order Denying Motion to Vacate and/or Relief from Judgment[”]; . . .
       6.     On October 7, 2004, the Criminal Court of Appeals affirmed this
              Court’s July 14, 2003 denial of the Petitioner’s Motion to Reconsider.
              The Court of Appeals specifically stated that “The Defendant’s
              convictions long ago became final. The claims by the Petitioner do not
              demonstrate that he is entitled to habeas corpus relief. If treated as a
              post conviction petitioner, the claim is barred by the statute of
              limitations.”; . . .
       7.     On March 14, 2005, Defendant filed an “Application for Permission to
              file Petition for Relief from Sentence or Conviction.” . . .
       8.     On March 16, 2005, this court denied Petitioner’s Application for Post
              Conviction Relief as being time barred; . . . .

        On August 7, 2009, Petitioner filed the instant “Petition for Relief from Conviction
or Sentence.” The post-conviction court summarily dismissed the petition by written order.
In its order, the post-conviction court stated:



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       [B]ased on T.C.A. § 40-30-102(b)(1), T.C.A. § 40-30-117(1) and [State v.
       Franklin, 130 S.W.3d 789 (Tenn. Crim. App. 2003)], the Court specifically
       finds as follows: Under Franklin, there was no retroactive application of an
       unrecognized constitutional right; the first post-conviction relief petition was
       filed on March 14, 2005, over one year after Franklin was decided; the second
       post-conviction relief petition was filed on August 7, 2009, over one year after
       Franklin was decided. It is the ORDER of this Court that this Petition for Post
       Conviction is time-barred by the statute of limitations. T.C.A. § 40-30-102(a).

Petitioner appeals from the post-conviction court’s summary dismissal of his petition for
post-conviction relief.


                                          ANALYSIS

        Petitioner argues that the trial court incorrectly dismissed his petition. The State
argues that the post-conviction court was correct in its dismissal based upon the statute of
limitations.

       In its order, the post-conviction court stated that the petition was filed outside of the
one-year statute of limitations as set out at Tennessee Code Annotated section 40-30-102(a).
Since July 1, 1995, the statute of limitations for filing a petition for post-conviction relief has
been one year from the date of the final action of the highest state appellate court to which
an appeal is taken. T.C.A. § 40-30-102(a).

       There are three statutory exceptions to the statute of limitations in post-conviction
matters.     These exceptions are set forth in Tennessee Code Annotated section
40-30-102(b)(1), (2) & (3): (1) claims based on an appellate court ruling concerning a
constitutional right not recognized at the time of the trial and given retroactive effect by the
appellate courts; (2) claims based upon newly discovered evidence which establishes that the
petitioner is actually innocent of the crime; and (3) claims which arise out of a situation
where the petitioner received an enhanced sentence for a crime based on previous
convictions which were later held to be invalid.

       With regard to Petitioner’s argument concerning Franklin, we agree with the post-
conviction court’s order. Franklin held “that the proper unit of prosecution for aggravated
robbery in Tennessee is the number of thefts rather than the number of victims.” 130 S.W.3d
at 798. As the post-conviction court stated, we have found no retroactive application of this
holding to previously determined cases in our appellate courts.



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        In the present case, the post-conviction petition was filed more than one year after the
date of the final action by the highest court to which an appeal was taken and thus well
outside the statute of limitations. The post-conviction court properly held that Petitioner
failed to show that one of the exceptions to the one-year deadline listed in the statute was
applicable.

       In addition to the exceptions set out in the statute, the courts in this State have found
that due process concerns can toll the statute of limitations in certain factual situations. See
Williams v. State, 44 S.W.3d 464 (Tenn. 2001); Sands v. State, 903 S.W.2d 297 (Tenn.
1995); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).

         Williams v. State, 44 S.W.3d 464 (Tenn. 2001), is the most recent in a line of cases
including Burford v. State, 845 S.W.2d 204 (Tenn. 1992) and Sands v. State, 903 S.W.2d 297
(Tenn. 1995), analyzing when due process limitations toll the statute of limitations. In
Burford, the petitioner’s sentence was being enhanced by previous convictions that had
subsequently been declared invalid, but not in time for him to meet the statute of limitations
for filing his post-conviction petition. Burford, 845 S.W.2d at 208. Our supreme court stated
that because the petitioner was in a procedural trap, the petitioner’s due process rights would
be violated by not allowing a tolling of the statute of limitations and the filing of a
post-conviction petition. Burford, 845 S.W.2d at 208-09.

      In Sands, our supreme court analyzed Burford and set out the basic rule derived from
Burford and how to go about applying this rule in future cases. The supreme court stated:


       [I]t will be helpful to summarize the basic rule to be derived from Burford:
       that, in certain circumstances, due process prohibits the strict application of the
       post-conviction statute of limitations to bar a petitioner’s claim when the
       grounds for relief, whether legal or factual, arise after the “final action of the
       highest state appellate court to which an appeal is taken”-or, in other words,
       when the grounds arise after the point at which the limitations period would
       normally have begun to run. In applying the Burford rule to specific factual
       situations, courts should utilize a three-step process: (1) determine when the
       limitations period would normally have begun to run; (2) determine whether
       grounds for relief actually arose after the limitations period would normally
       have commenced; and (3) if the grounds are “later-arising,” determine if, under
       the facts of the case, a strict application of the limitations period would
       effectively deny the petitioner a reasonable opportunity to present the claim.
       In making this final determination, courts should carefully weigh the
       petitioner’s liberty interest in “collaterally attacking constitutional violations

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       occurring during the convictions process,” Burford, 845 S.W.2d at 207, against
       the State’s interest in preventing the litigation of “stale and fraudulent claims.”
       Id. at 208.

Sands, 903 S.W.2d at 301. However, after going through this analysis, the supreme court
concluded that the statute of limitations had not been tolled in the Sands situation.

        In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), the supreme court again held that
the statute of limitations was tolled by the factual and legal situation of the petitioner. In
Williams, there was some dispute over whether the petitioner’s trial counsel continued to
represent him and how much the petitioner actually knew about the progress of his appeals.
The supreme court stated that the question was whether the petitioner had been “misled to
believe that [his trial] counsel was continuing the appeals process . . . .” Id. at 471. The
supreme court remanded the case to the trial court for it to determine whether the statute must
be tolled due to possible attorney misrepresentation. Id.

        Petitioner argues that he was incarcerated out-of-state for a time after he pled guilty
to the offenses in question and this fact warrants the tolling of the statute of limitations under
the Burford line of cases.

        Petitioner states that shortly after he pled guilty to the charges at hand, he was
transferred to another state. He was later returned to Tennessee. Petitioner argues that his
transfer to another state supports his argument that due process requires the tolling of the
statute. However, prior opinions of this Court specifically state that incarceration in another
state is not a ground for tolling of the statute of limitations. See Jason Earl Hill v. State, No.
E2005-00968-CCA-R3-PC, 2006 WL 389667, at *3 (Tenn. Crim. App., at Knoxville, Feb.
16, 2005), perm. app. denied, (Tenn. Sept. 5, 2006) (stating “a petitioner’s incarceration in
another state does not toll the statute of limitations.”); Brown v. State, 928 S.W.2d 453, 456
(Tenn. Crim. App. 1996).

        We conclude that Petitioner’s due process rights do not require the tolling of the
statute of limitations. Therefore, we affirm the post-conviction court’s dismissal of the
petition for post-conviction relief.




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                                CONCLUSION

       For the foregoing reasons, we affirm the dismissal of the petition by the
post-conviction court.




                                     ___________________________________
                                     JERRY L. SMITH, JUDGE




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