            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT KNOXVILLE              FILED
                          OCTOBER 1998 SESSION
                                                       February 19, 1999

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk

DAVID COX,                   *    C.C.A. # 03C01-9712-CC-00532

             Appellant,      *    BLOUNT COUNTY

VS.                          *    Hon. D. Kelly Thomas, Jr., Judge

STATE OF TENNESSEE,          *    (Post-Conviction)

             Appellee.       *




For Appellant:                    For Appellee:

Richard L. Gann, II               John Knox Walkup
P. O. Box 6888                    Attorney General & Reporter
320 Court Street
Maryville, TN 37804               Elizabeth B. Marney
                                  Assistant Attorney General
                                  Criminal Justice Division
                                  2d Floor, Cordell Hull Building
                                  425 Fifth Avenue North
                                  Nashville, TN 37243-0493

                                  Philip Morton
                                  Assistant District Attorney General
                                  363 Court Street
                                  Maryville, TN 37804




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, PRESIDING JUDGE
                                       OPINION

              The petitioner, David Cox, appeals the trial court's dismissal of his

petition for post-conviction relief. He presents three issues for our review:

              (I) whether the trial court erred by determining his
              petition was barred by the statute of limitations;

              (II) whether strict enforcement of the statute of
              limitations violates his right to due process; and

              (III) whether the trial court should have granted the
              state's motion to dismiss when it was untimely filed.



              We affirm the judgment of the trial court.



              On April 23, 1993, the petitioner was convicted of two counts of

possession and delivery of cocaine, for which he received an eight-year sentence.

The trial court ordered the petitioner to serve sixty days in custody; the balance of

the sentence was suspended. On October 5, 1994, this court affirmed. State v.

David Cox, No. 03C01-9401-CR-00023 (Tenn. Crim. App., at Knoxville, Oct. 5,

1994). There was no application for permission to appeal to the supreme court. Id.

Sometime later, the petitioner's probation was revoked. This court affirmed the

revocation. State v. David Cox, No.03C01-9510-CC-00328 (Tenn. Crim. App., at

Knoxville, Aug. 30, 1996). The supreme court denied review of the probation

revocation on April 14, 1997. On May 16, 1997, the petitioner filed this petition

alleging ineffective assistance of counsel at his trial and on appeal. The trial court

dismissed the petition as barred by the statute of limitations.



                                            I

              The petitioner argues that the statute of limitations did not begin until

April 14, 1997, when the supreme court denied review of his probation revocation

appeal, rather than October 5, 1994, when our court affirmed the trial court's

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judgment on his original trial.



              The original Post-Conviction Procedure Act of 1967 did not include a

statute of limitations. Effective July 1, 1986, the General Assembly adopted a

three-year statute of limitations. Tenn. Code Ann. § 40-30-102 (repealed 1995). In

consequence, any petitioner whose judgment had become final before July 1, 1986,

had only three years thereafter to file a petition for post-conviction relief. State v.

Masucci, 754 S.W.2d 90 (Tenn. Crim. App. 1988).



              In 1995, our legislature passed the new Post-Conviction Procedure Act

which is applicable to all petitions filed after May 10, 1995. It shortened the statute

of limitations to one year:

              (a) Except as provided in subsections (b) and (c), a
              person in custody under a sentence of a court of this
              state must petition for post-conviction relief under this
              part within one (1) year of the date of the final action of
              the highest state appellate court to which an appeal is
              taken or, if no appeal is taken, within one (1) year of the
              date on which the judgment became final, or
              consideration of such petition shall be barred. The
              statute of limitations shall not be tolled for any reason,
              including any tolling or saving provision otherwise
              available at law or equity. ... Except as specifically
              provided in subsections (b) and (c), the right to file a
              petition for post-conviction relief or a motion to reopen
              under this chapter shall be extinguished upon the
              expiration of the limitations period.

Tenn. Code Ann. § 40-30-201(a).



              In Betsy Jane Pendergrast v. State, No. 01C01-9607-CC-00289

(Tenn. Crim. App., at Nashville, May 16, 1997), this court ruled that any person

whose three-year statute of limitations had not expired when the new Act was

passed would have one year from its passage to file for relief. Slip op. at 3. See

generally Carter v. State, 952 S.W.2d 417 (Tenn. 1997). Here, the defendant was


                                            3
convicted on April 23, 1993. This court affirmed the judgment on October 5, 1994.

No further appeal was taken. Using the rationale of Pendergrast, the petitioner

would have had until May 10, 1996, to timely file a petition for post-conviction relief.



              The statute is tolled only in few circumstances: when a new

constitutional right has been created, there is scientific proof of actual innocence, or

when a sentence has been enhanced based on prior convictions which have

subsequently been found invalid. Tenn. Code Ann. § 40-30-202(b). Probation

revocation does not fall into any of these categories. Moreover, the defendant's

argument that the probation revocation extended the time in which to file is contrary

to the legislative intent of the 1995 Act, which sought to shorten the filing period and

limit the litigation of stale claims. In Carter, our supreme court observed that the

purpose of the new Act was to "restrict the time and opportunity to seek relief." 952

S.W.2d at 420.



              At the hearing on this post-conviction petition, the petitioner claimed

that his counsel at the convicting trial and the appeal from that conviction was

ineffective. For the first time in this appeal, he now argues that his counsel at the

probation revocation proceeding was ineffective for failing to advise the petitioner of

his rights under the Post-Conviction Procedure Act. Initially, this claim is waived for

failure to present it at the trial level. Butler v. State, 789 S.W.2d 898, 902 (Tenn.

1990). Furthermore, the general rule is that one does not have a constitutional right

to counsel at a probation revocation proceeding. The United States Supreme Court

has commented upon this issue:

              [T]he decision as to the need for counsel [at a revocation
              proceeding] must be made on a case-by-case basis ...
              Although ... counsel will probably be ... constitutionally
              unnecessary in most revocation hearings, there will
              remain certain cases in which fundamental fairness--the
              touchstone of due process-- will require [appointed

                                            4
              counsel].

Gagnon v. Scarpelli, 411 U.S. 778, 790 (1967). If there is no constitutional right to

counsel at the revocation proceedings, post-conviction relief cannot be granted on

grounds of ineffective assistance. Only a constitutional violation will qualify the

petitioner for relief. Tenn. Code Ann. § 40-30-203.



                                            II

              The petitioner next complains that application of the statute of

limitations to his petition violates his right to due process of the law. He first argues

that his due process rights are violated because the statute of limitations was

reduced from three years to one year. This court, however, has ruled that because

the one-year period provides a "reasonable opportunity to file for post-conviction

relief," due process is not violated. Carothers v. State, 980 S.W.2d 215, 218 (Tenn.

Crim. App. 1997).



              The petitioner also argues that strict enforcement of the limitations

period is improper because he did not perceive the need to file a post-conviction

proceeding until he realized he would have to serve his term in custody. 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. 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 Burford was "caught in a

procedural trap and unable to initiate litigation ... despite the approach of the

three-year limitation." Id.


                                            5
              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).



              Ignorance of the fact that he would have to serve his sentence does

not qualify as a "later-arising" ground. In our view, application of the statute of

limitations to his petition does not violate due process.



                                           III

              The petitioner's final complaint is that the state's motion to dismiss was

filed untimely and should not have been granted by the trial judge. We disagree.

The amended petition for post-conviction relief was filed on July 18, 1997. The state

filed a motion to dismiss on September 4, 1997. There was a hearing on the motion

to dismiss on November 6, 1997.



              Section 40-30-208, Tenn. Code Ann., governs the state's duty to

respond to a petition: "The district attorney general shall represent the state and file

an answer or other responsive pleading within thirty (30) days, unless extended for

good cause. ... Failure by the state to timely respond does not entitle to petitioner to


                                            6
relief under the Post-Conviction Procedure Act." Even though the state was late in

filing its response, the plain language of the statute requires that the petitioner is not

entitled to relief due to the tardiness of the state.



              Moreover, the trial court is under a statutory duty to dismiss the petition

if it is clearly barred by the statute of limitations. After the answer is filed, the court

is required to review the case. "If ... the court determines conclusively that the

petitioner is entitled to no relief, the court shall dismiss the petition." Tenn. Code

Ann. § 40-30-209(a). See also Tenn. Code Ann. § 40-30-206(a) ("If [at the

preliminary consideration phase] it plainly appears from the face of the petition ...

that the petition was not filed in the court of conviction or within the time set forth in

the statute of limitations ... the judge shall enter an order dismissing the petition").



              Accordingly, the judgment of the trial court is affirmed.



                                            __________________________________
                                            Gary R. Wade, Presiding Judge

CONCUR:



______________________________
David H. Welles, Judge



______________________________
Thomas T. Woodall, Judge




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