                                               FILED
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                          AT KNOXVILLE
                                                   July 9, 1998
                         MAY 1998 SESSION
                                               Cecil Crowson, Jr.
                                               Appellate C ourt Clerk

FREDERICK ORLANDO BLACK,         )
                                 )
           Appellant,            )   C.C.A. No. 03C01-9710-CC-00466
                                 )
vs.                              )   Anderson County
                                 )
STATE OF TENNESSEE,              )   Hon. William Lantrip, Judge
                                 )
           Appellee.             )   (Post Conviction)
                                 )




FOR THE APPELLANT:                   FOR THE APPELLEE:

CHRISTOPHER VAN RIPER                JOHN KNOX WALKUP
Attorney at Law                      Attorney General & Reporter
300 Main St., Ste. 200
Clinton, TN 37716                    TODD R. KELLEY
                                     Asst. Attorney General
                                     425 Fifth Ave. N., 2d Floor
                                     Nashville, TN 37243-0493

                                     JAMES N. RAMSEY
                                     District Attorney General

                                     JAN HICKS
                                     Asst. District Attorney General
                                     127 Anderson County Courthouse
                                     Clinton, TN 37716



OPINION FILED:________________

AFFIRMED

CURWOOD WITT, JUDGE
                                       OPINION

              The petitioner, Frederick Orlando Black, appeals the Anderson County

Criminal Court's denial of his petitions for post-conviction relief. In 1983, the

petitioner pleaded guilty to malicious shooting. In 1988, he pleaded guilty to

aggravated assault. Presently, he is serving a federal sentence for a drug offense.

In his post-conviction petitions, he alleges his federal sentence was enhanced due

to the 1983 and 1988 Anderson County convictions.               He seeks to have the

convictions set aside based on various infirmities. The court below found the

petitions barred by the statute of limitations and dismissed the actions. The

petitioner appeals the dismissals, claiming this court should find error (1) in the trial

court's failure to make findings pursuant to Burford v. State, 845 S.W.2d 204 (Tenn.

1995) and Sands v. State, 903 S.W.2d 297 (Tenn. 1995), and (2) in failing to find

the statute of limitations deprived the petitioner of due process. Having reviewed

the record, we find no error and affirm the judgment of the trial court.



              The petitioner's post-conviction actions were filed on April 8, 1996 and

December 10, 1996. Both dates are well past the statute of limitations applicable

to post-conviction actions. Tenn. Code Ann. § 40-30-202(a) (1997); see Carter v.

State, 952 S.W.2d 417 (Tenn. 1997) (petitioners for whom three-year statute of

limitations expired prior to enactment of one year statute of limitations do not have

right to bring post-conviction claim within one year of enactment). Under the current

statute, consideration of a petition not filed within the statute of limitations is proper

only if the claim (1) is based upon a newly established constitutional right not

recognized at the time of trial, (2) is based upon new scientific evidence establishing

actual innocence of the petitioner, or (3) the claim is based upon the enhancement

of sentence not resulting from a guilty plea with an agreed sentence where the

enhancing sentence subsequently has been held to be invalid. Tenn. Code Ann.

§ 40-30-202(b) (1997).

                                            2
              The petitioner's claims do not fit into any of the statutory categories

for untimely consideration. His allegations pertain to ineffective assistance of

counsel, unknowing and involuntary guilty pleas, lack of jurisdiction of the trial court,

lack of notice, and failure of the prosecutor to disclose allegedly exculpatory

evidence.1



              Furthermore, we are unpersuaded that the petitioner's claims are

controlled by Burford or Sands. Those cases arose under the previous version of

the Post-Conviction Procedure Act, which provided that post-conviction petitions

had to be filed within (a) three years of the date of the final action of the highest

state appellate court to which an appeal was taken, or (b) three years from July 1,

1986, the effective date of the statute. See Tenn. Code Ann. § 40-30-102 (1990)

(repealed 1995); State v. Mullins, 767 S.W.2d 668, 669 (Tenn. Crim. App. 1988).

An exception applied, however, to preserve the right of a post-conviction petitioner

to mount an otherwise untimely challenge where strict application of the statute of

limitations would deprive the petitioner of due process of law. Burford v. State, 845

S.W.2d 204 (Tenn. 1992).



              Burford was a unique case in which the petitioner was caught in a

procedural trap in which he first had to successfully challenge convictions in a post-

conviction proceeding in one county in order to have a justiciable claim for relief in

post-conviction proceedings in another county. Burford, 845 S.W.2d at 208. He

was caught in a quandary because the approach of the statute of limitations

applicable to the latter claim was looming prior to a determination of the former



       1
        The allegedly exculpatory evidence relates to the aggravated assault
conviction. According to the petitioner, the victim of the aggravated assault told
the prosecutor that he had provoked the petitioner and was at fault for what
occurred. The petitioner alleges this statement was withheld by the prosecutor
and if known to him would have affected his decision to enter a guilty plea.

                                           3
claim. Burford, 845 S.W.2d at 208. The supreme court found the application of the

statute of limitations to the latter claim violative of due process in that limited

circumstance and allowed the Burford petitioner to maintain his claim

notwithstanding the statute of limitations. See Burford, 845 S.W.2d at 209-10.

Burford did not, however, give post-conviction petitioners the right to wage collateral

attack on stale convictions themselves outside the statute of limitations. Unlike the

present petitioner, the petitioner in Burford filed his attack on his enhancing

convictions within the time then allowed under the Act. See generally Burford, 845

S.W.2d 204. Unlike Burford, the petitioner herein seeks to challenge not his

enhanced federal sentence, over which this court has no jurisdiction, but his

enhancing Tennessee convictions.          In this situation, the Burford exception is

inapplicable.2



                 In Sands, the petitioner alleged that the jury instructions used in his

1977 trial were found unconstitutional by the United States Supreme Court in 1979.

Sands, 903 S.W.2d at 298. The Sands petitioner initiated his post-conviction claim

in 1990,3 well outside the three year statute of limitations. See Sands, 903 S.W.2d

at 298. In passing on the claim, the supreme court concluded that the basic rule of

Burford was that "due process prohibits the strict application of the post-conviction

statute of limitations to bar a petitioner's claim when the grounds for relief, whether

legal or factual, arise . . . after the point at which the limitations period would

normally have begun to run." Sands, 903 S.W.2d at 301. The Sands court

established a three-step analysis for applying the Burford rule to specific factual


       2
       In her concurring opinion in Burford, Justice Daughtrey discusses a
hypothetical situation in which evidence suppressed by the prosecution might
surface many years after a trial was completed. Burford, 845 S.W.2d at 211
(Daughtrey, J., concurring). In this case, the petitioner, who has had the benefit
of counsel throughout these proceedings, makes no allegation about when he
discovered the information allegedly suppressed by the prosecutor.
       3
           The Sands petitioner had filed two earlier post-conviction actions.

                                            4
situations. Under this test, the court should:

       (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 . . . carefully weigh[ing] 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 301 (quoting Burford, 845 S.W.2d at 207-08).



               In the case at bar, the only claim which might possibly be categorized

as "later arising" per Sands is the petitioner's allegation that the prosecutor

suppressed exculpatory evidence. Even if so categorized, such a claim is doomed

to failure because the petitioner does not allege the date on which he discovered

the purported misdeeds of the prosecution. The lack of this information prevents

the court, first, from determining whether the grounds actually arose after the

limitations period commenced, and second, balancing the petitioner's liberty interest

against the state's interest in preventing collateral attack on an eight-year-old

conviction. See Tenn. Code Ann. § 40-30-206(f) (1997) ("If the facts alleged, taken

as true, fail to show that the petitioner is entitled to relief . . . the petition shall be

dismissed.") Thus, Sands would not save the petitioner's claim.



               Because the petitioner failed to allege facts under which Burford and

Sands might apply to his case, the trial court did not err by not making findings

under the three-step Sands analysis.



               Finding no error in the trial court's dismissal of Black's petitions, we


                                            5
affirm its judgment.



                                _______________________________
                                CURWOOD WITT, JUDGE


CONCUR:



_____________________________
JOSEPH M. TIPTON, JUDGE



_____________________________
JOE G. RILEY, JUDGE




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