         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE

               RANDALL BLAKENEY v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Knox County
                               No. 80451 Ray Jenkins, Judge


                      No. E2004-02499-CCA-R3-PC - Filed April 13, 2005


The petitioner, Randall Blakeney, appeals the trial court’s order denying 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, Tenn. Ct. Crim. App. R. The pleading is barred by the statute of limitations and was
properly dismissed. Accordingly, the state's motion is granted and the judgment of the trial court is
affirmed.

     Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
                      Pursuant to Rule 20, Tenn. Ct. Crim. App. R.

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and NORMA
MCGEE OGLE, J.J., joined.

Randall Blakeney, Pikeville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

                                   MEMORANDUM OPINION

        According to the petitioner’s brief and attachments thereto, the petitioner was convicted in
January 1999 pursuant to guilty pleas for first degree murder and especially aggravated robbery.
Upon these convictions, he was sentenced as a Range II offender to life imprisonment with the
possibility of parole and a consecutive term of forty years, respectively. In October 2000, he filed
a pro se “Petition to Correct or Modify Void Illegal Sentence,” asserting that he was improperly
sentenced as a Range II offender without the requisite number of prior felony convictions to support
sentencing under that classification. The trial court denied relief, finding that a defendant may plead
outside the range of punishment. On appeal, this court agreed and summarily affirmed the judgment
of the trial court. See Randy Oscar Blakeney, No. E2001-00457-CCA-R3-CD (Tenn. Crim. App.
Nov. 6, 2001)(order).
        On September 3, 2004, the pro se petitioner, citing the Post-Conviction Procedure Act,1 filed
a “Motion for Counsel and New Evidentiary Hearing” in the trial court. Documents attached to the
petitioner’s memorandum of law reflect that his trial counsel was disciplined in connection with his
representation of the petitioner for violating two provisions of the former Code of Professional
Responsibility generally concerning an attorney’s duty to deliver, upon request, all papers and other
property to which a client is entitled upon the attorney’s withdrawal.2 See Tenn. Sup. Ct. R. 8, DR
2-110(A)(2); DR 9-102(B)(4) (2002). The record reflects that the disciplinary proceedings arose as
the result of petitioner’s complaint alleging, in particular, that counsel had failed to comply with the
petitioner’s request to forward the entire contents of the petitioner’s “legal file” to the petitioner upon
counsel’s withdrawal at the conclusion of proceedings in the trial court. The petitioner claimed that
as a result of counsel’s infractions, the petitioner received ineffective assistance of trial counsel and
was deprived of the opportunity to pursue post-conviction relief. Although he submitted no post-
conviction petition with the instant motion, the petitioner moved the trial court to appoint counsel
and grant him an evidentiary hearing “in regards to [the petitioner’s] petition for post-conviction
relief.” The trial court dismissed the motion, finding that if construed as a petition for post-
conviction relief, the motion was barred by the statute of limitations.

         Tennessee Code Annotated Section 40-30-102 (a) provides that a person must petition for
post-conviction relief within one year of the date on which the judgment became final or
consideration of the petition will be time-barred. 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.” Id. In the present case, six years after entry of the challenged
judgment and well beyond the one-year limitations period, no petition has yet been filed. The instant
motion is in essence not a post-conviction petition but simply a request for an opportunity to pursue
post-conviction relief in an admittedly untimely manner. The motion contains no indication of the
nature of any constitutional challenges the petitioner intends to assert against his underlying
judgments of conviction entered pursuant to his pleas of guilty. The petitioner does not explain his
failure timely to pursue post-conviction relief other than to argue that counsel’s failure to provide
him with his case file prevented him from doing so. Under the facts presented, we conclude that the
petition was properly dismissed.
         In Avant v. State, 577 S.W.2d 471 (Tenn. Crim. App. Dec. 7, 1978), app. denied (Tenn. Feb.
20, 1979), this court considered an appeal from the trial court’s denial of a petition requesting
“copies of all warrants, indictments, minute entries, paper writings filed with the court, any transcript
of trial proceedings as well as appellate proceedings, or, in the alternative, affording the [petitioner]
reasonable, personal access to the preexisting files and records including, presumably, a transcript
of his guilty plea submission hearing.” The petitioner requested the records following the conclusion
of appellate proceedings in which his judgments of conviction and sentences were affirmed. The


        1
             See Tenn. Code Ann. § 40-30-101, et seq., formerly Tenn. Code Ann. § 40-30-201, et. seq.

         2
          The Code of Professional Responsibility was replaced in its entirety with the Rules of Professional Conduct
effective March 1, 2003. See Tenn. S. Ct. R. 8, RPC (2003).

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parties stipulated that the petitioner was incarcerated, indigent, and unable to personally inspect the
records in the court clerk’s offices. This court affirmed the trial court’s denial of the petition,
observing that “[w]ith the establishment by the legislature of the Post-Conviction Procedure Act, the
appellant has not been denied meaningful access to the court . . . . “ Id. at 472. The court further
observed that under the Act, “there are two prerequisites placed upon the petitioner: (1) that he file
a petition for post conviction relief, and (2) that he is declared an indigent . . . before the trial court
may order any document necessary to further his attack upon his conviction.” Id. at 472-73; see also
Tenn. Code Ann. §§ 40-30-106, - 107.

        Returning to the present case, we conclude that lack of access to his case file did not prevent
or excuse the petitioner from timely filing a proper post-conviction relief petition setting forth any
cognizable claims for relief supported by allegations of fact. See Tenn. Code Ann. § 40-30-104. We
further reject the petitioner’s argument that due process considerations tolled the statute of
limitations for seeking post-conviction relief. Based on our review of the record, pleadings and
relevant law, we conclude that the trial court properly dismissed the motion or “petition” as time-
barred.

       Accordingly, the state’s motion is granted. The judgment of the trial court is affirmed in
accordance with Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.


                                                         _______________________________________
                                                           GARY R. WADE, PRESIDING JUDGE




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