         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT KNOXVILLE

                            JANUARY SESSION, l995
                                                       FILED
                                                        October 30, 1995

TIMOTHY WAYNE PETERS     )                             Cecil Crowson, Jr.
                                                       Appellate Court Clerk
                         )
               APPELLANT )            NO. 03C0l-9409-CR-0033l
                         )
                         )            SULLIVAN COUNTY
                         )
V.                       )            HON. EDGAR P. CALHOUN, JUDGE
                         )
                         )            ({Post-Conviction Relief Petition)
                         )
STATE OF TENNESSEE       )
                         )
               APPELLEE )



FOR THE APPELLANT:                    FOR THE APPELLEE:

Paul R. Wohlford                      Charles W. Burson
Attorney at Law                       Attorney General
(At trial only)
40l Edgemont Ave.                     Cyril V. Fraser
Bristol, TN 37620                     Assistant Attorney General
                                      450 James Robertson Parkway
Dale Barnes                           Nashville, TN 37243-0493
Attorney at Law
(At trial only)                       H. Greeley Wells, Jr.
                                      District Attorney General

Gale K. Flanary                       Jerry Beck
Assistant Public Defender             Phyllis Fitzwilson Miller
(On appeal only)                      Asst. Dist. Attorneys General
P.O. Box 839                          P.O. Box 526
Blountville, TN 376l7
                                      Blountville, TN 376l7




AFFIRMED



OPINION FILED:_________________________




JERRY SCOTT, PRESIDING JUDGE




                                 OPINION
       The appellant, Timothy Wayne Peters, appeals from the Sullivan County

Criminal Court's summary dismissal of his petition for post-conviction relief. The

trial court dismissed the petition on the merits, finding that the petition failed to

specifically set forth any valid grounds establishing a constitutional deprivation.

On appeal, the appellant contends (a) that the petition was timely filed and (b)

that the trial court's denial of relief was error. Since this Court finds the petition

was properly dismissed, the judgment of the trial court is affirmed.



       The appellant was convicted of first degree murder on October 1, 1986.

He filed a pro se post-conviction petition on October 28, 1988. The petition was

dismissed by the trial court, and the dismissal was affirmed on appeal. On

October 21, 1991, the appellant filed a second petition for post-conviction relief.

The trial court dismissed the petition on the grounds that the petition was barred

by the statute of limitations. The petition here under consideration was filed on

December 23, 1992. On January 27, 1993, the appellant filed a motion

requesting that the statute of limitations be set aside.1 Following the dismissal of

the petition by the trial court on July 29, 1994, the appellant filed this appeal.



       Pursuant to the Post-Conviction Procedure Act, relief could then be

granted to a petitioner on the following grounds:

       Relief . . . shall be granted when the conviction or sentence is void
       or voidable because of the abridgement in any way of any right
       guaranteed by the constitution of this state or the Constitution of
       the United States, including a right that was not recognized as
       existing at the time of the trial if either constitution requires
       retrospective application of that right.

Tenn. Code Ann. § 40-30-105 [repealed]. In this regard, the appellant contends

State v. Brown, 836 S.W.2d 530, 543 (Tenn. 1992) created a new constitutional

rule concerning the elements of premeditation and deliberation in first degree


1
 There is no evidence in the record that the trial court ever ruled on this motion.
However, because of our belief that this issue is dispositive of the case, we
consider the trial court's inaction to be plain error and address the issue sua
sponte.

                                           2
murder cases. He further asserts that Meadows v. State, 849 S.W.2d 748, 755

(Tenn. 1993) requires retroactive application of Brown. We disagree.



        At the time this petition was filed, the law provided that a petition for post-

conviction relief must be filed "within three (3) years of the date of the final action

of the highest state appellate court to which an appeal is taken or consideration

of such petition shall be barred."2 Tenn. Code Ann. § 40-30-102 [repealed]. In

the present case, the appellant's petition was filed well beyond the three year

statutory period and, thus, is subject to dismissal. See Harden v. State, 873

S.W.2d 2, 3 (Tenn. Crim. App. 1993). In addressing this statutory preclusion,

the appellant attempts to except his case from the statute of limitations by

arguing that the statutory period did not commence until Brown was decided in

1992.



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

Court held that "it is possible that under the circumstances of a particular case,

application of the statute may not afford a reasonable opportunity to have the

claimed issue heard and decided." To avoid running afoul of such due process

concerns, two exceptions to the application of the three-year statute of

limitations have been promulgated. The first exception involves cases like

Burford, 845 S.W.2d at 210, where a procedural trap deprives the criminal

defendant of a reasonable opportunity to present his claim. The second

exception applies where a new constitutional rule is created which requires

retrospective application. Tenn. Code Ann. § 40-30-105 [repealed].




2
 The time for filing is now one year from the date of the final action of the highest
state appellate court to which an appeal is taken or, in the event of no appeal,
the date the judgment became final. Tenn. Code Ann. § 40-30-202(a).

                                           3
         The present case does not rest within either exception. In Burford, the

petitioner was caught in a procedural trap because his post-conviction claim in

one county did not arise until several prior convictions were set aside in a

separate post-conviction action in another county. Id. at 205-06. The record

does not support that the appellant has suffered any such procedural vexation in

this case. In regard to the second exception, this Court has consistently held

that the Supreme Court did not intend that Brown be applied retrospectively.

E.g., Lofton v. State, 898 S.W.2d 246, 250 (Tenn. Crim. App. 1994); State v.

Sills, No. 03C01-9410-CR-00370, 1995 WL 271726, at *4 (Tenn. Crim. App.

May 10, 1995); Frantzreb v. State, No. 01C01-9308-CR-00247, 1994 WL

456374, at *1 (Tenn. Crim. App. Aug. 23, 1994); Walker v. State, No. 01C01-

9402-CR-00055, 1994 WL 390473, at *2 Tenn. Crim. App. July 28, 1994).

Moreover, on several occasions this Court has noted that nothing in Brown

suggests that the Supreme Court's modification of the jury instruction in first

degree murder cases created a new constitutional rule. E.g., Lofton, 898 S.W.2d

at 249; Miller v. State, No. 03C01-9409-CR-00336, 1995 WL 395842, at *3

(Tenn. Crim. App. July 6, 1995); Fuller v. State, No. 03C01-9407-CR-00249,

1995 WL 382684, *3 (Tenn. Crim. App. June 27, 1995); State v. Hayes, No.

03C01-9310-CR-00347, 1994 WL 440832, at *1 (Tenn. Crim. App. Aug. 17,

1994).



         Based on the foregoing facts and legal precedents, it is manifest that the

appellant's petition for post-conviction relief was filed beyond the period

permitted by the statute of limitations, and that no exception to the limitations

period applies. Accordingly, without reaching the merits of the petition, we affirm

the trial court's dismissal of the petition.




                                               4
                                _______________________________
                                JERRY SCOTT, PRESIDING JUDGE


CONCUR:



_________________________________
JOE B. JONES, JUDGE



_________________________________
WALTER C. KURTZ, SPECIAL JUDGE




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