            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE             FILED
                              OCTOBER 1997 SESSION
                                                          December 12, 1997

                                                          Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
DANNY GARRETT,                   *    C.C.A. # 03C01-9603-CR-00111

      Appellant,                 *    KNOX COUNTY

VS.                              *    Hon. Ray L. Jenkins, Judge

STATE OF TENNESSEE,              *    (Post-Conviction)

      Appellee.                  *




For Appellant:                        For Appellee:

Danny Garrett, Pro Se                 John Knox Walkup
# 123195                              Attorney General and Reporter
Northeast Correction Center
P.O. Box 5000                         Timothy F. Behan
Mountain City, TN 37683               Assistant Attorney General
                                      450 James Robertson Parkway
                                      Nashville, TN 37243-0493

                                      Randall E. Nichols
                                      District Attorney General
                                      City-County Building
                                      Knoxville, TN 37902



OPINION FILED:______________________



AFFIRMED



GARY R. WADE, JUDGE
                                          OPINION

               The defendant, Danny Garrett, appeals the trial court's denial of post-

conviction relief. The single issue presented for review is whether the petition was

barred by the statute of limitations.



               We affirm the judgment of the trial court.



               On October 5, 1987, the petitioner entered pleas of guilt to armed

robbery and assault with intent to commit murder. The trial court imposed a Range

I, fifteen-year sentence for each charge. There was no appeal. On March 4, 1994,

the petitioner received a sentence in federal court for possession of a firearm; his

1987 sentences were used to enhance the length of sentence. Two months later,

the petitioner filed his first petition for post-conviction relief. The trial court

dismissed the petition as untimely filed. See Tenn. Code Ann. § 40-30-102

(repealed 1995). This court affirmed on direct appeal. Danny E. Garrett v. State,

No. 03C01-9411-CR-00429 (Tenn. Crim. App., at Knoxville, July 25, 1995).



               This petition, the petitioner's second, was filed on October 25, 1995.

The trial court dismissed the petition on the basis that it was barred by the statute of

the limitations. In this appeal, the petitioner argues that his constitutional rights to

due process preclude the statute of limitations as a defense. We disagree.



               In Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992), our supreme

court held that in certain situations application of the statute of limitations in a post-

conviction proceeding would violate due process. In determining whether there has

been a violation of due process, the essential question is whether the time period

allowed by law provides petitioner a fair and reasonable opportunity to file suit. Id.


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In Burford, the petitioner could not file within the three-year limitation absent a

determination on his prior post-conviction petition. Our supreme court ruled that Mr.

Burford was "caught in a procedural trap and unable to initiate litigation ... despite

the approach of the three-year limitation." Id. There was no such trap here.



              In Sands v. State, 903 S.W.2d 297 (Tenn. 1995), our supreme court

further defined how to apply the Burford test. Courts must

              (1) determine when the limitations period would normally
              have begun to run; (2) determine whether the 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 occurring
              during the conviction process," against the state's
              interest in preventing the litigation of "stale and
              fraudulent claims."

Sands, 903 S.W.2d at 301 (citations omitted) (quoting Burford, 845 S.W.2d at 207,

208).



              By the use of these guidelines, we have determined that the statute of

limitations would have begun to run on October 5, 1987. Essentially, the petitioner

argues that his pleas were not knowingly and voluntarily entered. While that would

have been a basis for post-conviction relief, if established by the proof, those

grounds were available well before the limitations period commenced. Thus, the

petitioner's claims fail to meet the second requirement of Sands.



              Recently, our supreme court ruled that the 1995 Post-Conviction

Procedure Act, which reduced the statute of limitations to a period of one year, did

not revive any action which had been barred by the previous statute of limitations.


                                            3
See Arnold Carter v. State, ____ S.W.2d ____, No. 03-S-01-9612-CR-00117, slip

op. at 6 (Tenn., at Knoxville, Sept. 8, 1997). Thus, any argument that the new Act

allowed a one-year opportunity for new filings lacks merit. See Tenn. Code Ann.

§ 40-30-202.



               Accordingly, the judgment is affirmed.



                                          ________________________________
                                          Gary R. Wade, Judge

CONCUR:



_____________________________
David H. Welles, Judge



_____________________________
Jerry L. Smith, Judge




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