        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT JACKSON             FILED
                           MAY SESSION, 1997         September 23, 1997

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

BOBBY LEE JEFFRIES,                )   C.C.A. NO. 02C01-9607-CR-00216
                                   )
            Appellant,             )
                                   )   SHELBY COUNTY
                                   )
V.                                 )
                                   )   HON. JOSEPH B. DAILEY, JUDGE
STATE OF TENNESSEE,                )
                                   )
            Appellee.              )   (POST-CONVICTION)




FOR THE APPELLANT:                 FOR THE APPELLEE:

BOBBY LEE JEFFRIES, pro se         JOHN KNOX WALKUP
Inmate #84191                      Attorney General & Reporter
Cold Creek Correctional Facility
P.O. Box 1000                      DEBORAH A. TULLIS
Henning, TN 38041-1000             Assistant Attorney General
                                   2nd Floor, Cordell Hull Building
                                   425 Fifth Avenue North
                                   Nashville, TN 37243

                                   JOHN W. PIEROTTI
                                   District Attorney General

                                   DAVID HENRY
                                   Assistant District Attorney General
                                   201 Poplar Avenue, Ste. 301
                                   Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION

       The Petitioner, Bobby Lee Jeffries, appeals the order of the Shelby County

Criminal Court dismissing his pro se petition for post-conviction relief. The trial

court found that his petition was filed outside the statute of limitations, and failed

to state a claim upon which relief could be granted. In this appeal, Petitioner

raises numerous issues which can collectively be summarized as challenging the

trial court’s ruling that the petition for post-conviction relief is time-barred. The

Petitioner’s primary argum ent is that the Post-Conviction Procedure Act that

became effective May 10, 1995, gives him a new-one year time period in which

to file a Petition for Post-Conviction Relief. After a review of the record, we affirm

the trial court’s denial of post-conviction relief.



       On November 28, 1984, Petitioner was convicted by a jury of two counts

of armed robbery, was found to be a habitual criminal, and was sentenced to life

imprisonment. This Court confirmed Petitioner’s conviction on October 9, 1985.

The Tennessee Supreme Court denied Petitioner’s application for perm ission to

appeal on January 21, 1986.



       On June 7, 1989, the United States District Court for the W estern District

of Tennessee granted Petitioner’s petition for habeas corpus relief as to his 1984

habitual criminal conviction. His life sentence as a habitual criminal was vacated

and he was resentenced by the trial court to two fifteen (15) year sentences to be

served concurrently for the two armed robbery convictions. This court affirmed

the trial court’s judgment on February 27, 1991.



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      On May 1, 1996, Petitioner filed this petition for post-conviction relief with

the Shelby County trial court. The trial court subsequently dismissed the petition

because it was filed outside the statute of limitations and failed to state a claim

upon which relief could be granted.



      The record supports the trial court’s finding that the petition is time- barred.

In July 1986, the Tennessee Legislature enacted a three-year statute of

limitations on post-conviction petitions. Tenn. Code Ann. § 40-30-102 (repealed

1995); see also Passarella v. State, 891 S.W.2d 619, 624 (Tenn. Crim. App.),

perm. to appeal denied, (Tenn. Nov. 28, 1994). Petitioner’s convictions and

sentence were effective on January 21, 1986 when the Supreme Court denied

his application for permission to appeal.       This would be the “final action of the

highest state appellate court . . . .” Tenn. Code Ann. § 40-30-102 (repealed

1995). Under the 1986 statute, Petitioner had three years from July 1, 1986, to

file a cognizable claim for post-conviction relief of the 1984 convictions. Tenn.

Code Ann. § 40-30-102 (repealed 1995).              Therefore, in order to prevail,

Petitioner must have filed a petition by July 1, 1989 to toll the running of the

statute. Furthermore, even if this Court’s affirmance of Petitioner’s resentencing

on February 27, 1991 is deemed to be the final action of this case, Petitioner

would have had to file his petition by February 27, 1994. Petitioner did not file his

petition for post conviction relief until May 1, 1996, well past the three-year statute

of limitations under either view. Thus, the Petitioner is barred from seeking post-

conviction relief for the 1984 convictions.



      The Tennessee Supreme Court recently rejected Petitioner’s argument that

the new Post-Conviction Procedure Act, effective May 10, 1995, grants an

                                          -3-
additional one-year period, until May 10, 1996, to file a post-conviction petition.

Carter v. State, __S.W .2d__, No. 03-S-01-9612-CR-00117, Monroe County,

(Tenn., at Knoxville, Sept. 8, 1997); see also Tenn. Code Ann. § 40-30-201 et

seq. (Supp. 1996). In that case, our supreme court held that the new act “is not

intended to revive claims that were barred by the previous statute of limitations.

W e agree with the view that the statute was intended to restrict the time and

opportunity to seek post-conviction relief. Clearly, this purpose is not served by

a statutory construction that allows additional time and opportunity for petitioners

whose claims are already barred by the prior statute of limitations.” Carter,

__S.W.2d__, No. 03-S-01-9612-CR-00117, slip op. at 7. Therefore, “petitioners

for whom the statute of limitations expired prior to the effective date of the new

Act, i.e., May 10, 1995, do not have an additional year in which to file petitions for

post-conviction relief.” Id. at 2.



       If Petitioner had any claims he wished to present in a post-conviction

cause of action, they expired on July 1, 1989 for the 1984 convictions, or in the

alternative, on February 27, 1994. After either of those dates, Petitioner no

longer had a claim under either the old or the new act. Under the authority cited

above, the 1995 Act will not revive a claim which is already time-barred.




      Even if the petition was not barred by the statute of limitations, the sole

substantive issue presented by Petitioner would be without merit. In the present

petition, Petitioner argues that the “reasonable doubt” jury instruction given by the

trial court violated his constitutional rights under the Fifth, Sixth, Eighth, and

Fourteenth Amendments to the United States Constitution. Our courts have

                                         -4-
repeatedly held that the jury instruction challenged by Petitioner is a valid

instruction on reasonable doubt. Nichols v. State, 877 S.W .2d 722, 734 (Tenn.

1994); State v. Sexton, 917 S.W.2d 263, 266 (Tenn. Crim. App. 1995); Pettyjohn

v. State, 885 S.W .2d 364, 366 (Tenn. Crim. App. 1994); State v. Hallock, 875

S.W .2d 285, 294 (Tenn. Crim. App. 1993).



      Accordingly, we affirm the judgment of the trial court and hold that the

Petitioner’s petition for post-conviction relief is time-barred by the applicable

three-year statute of limitations under the 1986 Act.



                                ____________________________________
                                THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WADE, Judge


___________________________________
JOHN H. PEAY, Judge




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