             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT NASHVILLE
                                    Assigned on Briefs April 22, 2003

                         TAVARES HILL v. STATE OF TENNESSEE

                       Direct Appeal from the Circuit Court for Maury County
                               No. 9576     Stella L. Hargrove, Judge



                      No. M2002-02997-CCA-R3-CO - Filed November 14, 2003


The appellant, Tavares Hill,1 appeals the denial of his petition for writ of habeas corpus, which the
trial court dismissed as an untimely petition for post-conviction relief. He argues that due process
tolled the statute of limitations for post-conviction relief. Upon review of the record and the parties’
briefs, we affirm the judgment of the post-conviction court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed.

NORMA MCGEE OGLE , J., delivered the opinion of the court, in which JOE G. RILEY and JAMES
CURWOOD WITT, JR., JJ., joined.

Tavares Hill, Clifton, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Mike Bottoms, District Attorney General; and Robert C. Sanders, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                                       OPINION

        On August 18, 1992, the appellant entered a nolo contendere plea to second degree murder
in exchange for a sentence of eighteen years and reserved certified questions of law for appeal. On
appeal, this court affirmed his conviction. State v. Tavaris Hill, No. 01C01-9301-CC-00028, 1993
Tenn. Crim. App. LEXIS 606 (Nashville, Sept. 9, 1993). On July 22, 1996, the appellant filed a
pleading styled as a petition for writ of habeas corpus in which he contended: (1) he was not
afforded an evidentiary hearing before the grand jury due to lack of notice; (2) the State violated his
right against self-incrimination; (3) his trial counsel was ineffective; and (4) his nolo contendere plea




         1
          In a prior appeal, this co urt referred to the appellant as “Tavaris Hill.” See State v. Tavaris H ill, No. 01C01-
9301-CC-00028, 1993 Tenn. Crim. App. LEXIS 606 (Nashville, Sept. 9, 1993). Ho wever, we note that the judgment
of conviction and the petition which forms the basis for the instant appeal refer to the app ellant as “T avare s Hill.”
was not entered voluntarily and intelligently. 2 For reasons not apparent in the record, nothing else
was filed until the State’s response in May 2002. On September 5, 2002, the circuit court dismissed
the petition finding: (1) the petition for writ of habeas corpus was filed in the wrong county as the
petitioner was housed in Bledsoe County; (2) the petition should be treated as a request for post-
conviction relief; and (3) the post-conviction petition was filed outside of the statute of limitations.

       The appellant subsequently filed a “Motion to Reopen Post-Conviction Petition.” On
October 31, 2002, the post-conviction court entered and filed an order denying the motion to reopen.
The appellant filed a notice of appeal as of right on November 21, 2002.

                                          I. MOTION TO REOPEN

         When a motion to reopen a petition for post-conviction relief is denied, the petitioner has ten
days in which to file with this court an application seeking an interlocutory appeal. Tenn. Code
Ann. § 40-30-117(c) (2003).3 The rules of appellate procedure do not otherwise allow an appeal as
of right from the denial of a motion to reopen a post-conviction relief proceeding. See Tenn. R.
App. P. 3(b); see also Graham v. State, 90 S.W.3d 687, 691 (Tenn. 2002) (holding a “notice of
appeal” may be treated as an application for interlocutory appeal when it contains sufficient
information). Here, the appellant did not file his notice of appeal within the ten-day time period.4
Since the appellant failed to perfect his appeal according to the statutorily mandated procedure, this
court is without jurisdiction to address the motion to reopen. See William Lee Drumbarger v. State,
No. M1999-01444-CCA-R3-PC, 1999 Tenn. Crim. App. LEXIS 1199, at *3 (Nashville, Dec. 9,
1999). We also note that the motion does not allege any of the three proper bases for a motion to
reopen. See Tenn. Code Ann. § 40-30-117(a) (2003).

                                  II. UNTIMELY NOTICE OF APPEAL

        The appellant’s notice of appeal was filed more than two months after the trial court denied
his original petition. Therefore, his notice of appeal was untimely. Tenn. Code Ann. § 40-30-116
(2003); Tenn. R. App. P. 4(a). Nevertheless, we elect to waive the untimely filing and address the
post-conviction court’s denial of post-conviction relief. Tenn. R. App. P. 4(a).




         2
           The petition was filed on a form labeled and designed for a petition seeking habeas corpus relief in a United
States F ederal District Court.
         3
           In 1995, former sections 40-30-101–124 were repealed and the chapter renumbered the sections 40-30-
201 –22 2. 199 5 Tenn. Pub . Acts, ch. 207, § 1. The 200 3 bound vo lume of Tennessee Cod e Annotated designates the
sections as 40-30-101–122.
         4
          The order of dismissal was entered October 31, 2002. The notice of appeal was signed November 18, 2002,
and presu mab ly delivered to corre ctional perso nnel for mailing. See Tenn. Sup. Ct. R . 28 § 2(G ) (pap ers of inm ate
deemed filed when delivered to correctional personnel for mailing.) This date is beyond the ten-day period.

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          III. STATUTE OF LIMITATIONS FOR POST-CONVICTION RELIEF

         The trial court properly treated the appellant’s original petition as one for post-conviction
relief. Tenn. Code Ann. § 40-30-105(c) (2003). The petition for writ of habeas corpus did not state
an appropriate ground for relief and was filed in the wrong county. See Taylor v. State, 995 S.W.2d
78, 83 (Tenn. 1999) (holding habeas corpus is only available to challenge a void or expired
sentence); see also Tenn. Code Ann. § 29-21-105 (2000) (generally requiring petition to be filed in
county “most convenient in point of distance to the applicant”). The appellant does not contend that
the trial court erred in this regard. Instead, he maintains that due process required that the statute
of limitations for filing his petition for post-conviction relief be tolled.

        A petition for post-conviction relief must be filed within one year of the final action of the
highest state appellate court to which an appeal is taken, or, if no appeal is taken, within one year
of the date on which the judgment became final, or consideration of the petition is barred. Tenn.
Code Ann. § 40-30-102(a) (2003). Time is of the essence in claiming post-conviction relief, and
compliance with the one-year statute is an element of the right to file a petition. Id. There are three
statutory exceptions to the one-year statute of limitations: (1) when a new constitutional right has
been recognized; (2) when the petitioner’s innocence has been established by new scientific
evidence; or (3) when a previous conviction that enhanced the petitioner’s sentence has been held
invalid. Tenn. Code Ann. § 40-30-102(b) (2003). However, an otherwise untimely petition is
considered timely if the application of the statute of limitations would be a denial of due process.
See Seals v. State, 23 S.W.3d 272, 278-79 (Tenn. 2000).

        When the appellant entered his nolo contendere plea in 1992, the statute of limitations for
filing a post-conviction relief petition was three years. Tenn. Code Ann. § 40-30-102 (1990).
Before the appellant’s three-year period expired, the state legislature modified the statute of
limitations, reducing the statute of limitations for seeking post-conviction relief to one year effective
May 10, 1995. Tenn. Code Ann. § 40-30-202 (Supp. 1995); see also Carter v. State, 952 S.W.2d
417, 419 (Tenn. 1997). Accordingly, the appellant had one year from May 10, 1995, to file his
petition for post-conviction relief. See Carter, 952 S.W.2d at 420. His original petition, filed in July
1996, was tardy.

        The appellant contends that the one-year statute of limitations denied him a reasonable
opportunity to raise his claims in a meaningful, timely manner. On appeal, he maintains that he has
demonstrated an inability to manage his personal affairs or understand his legal rights and liabilities,
and that he has a late-arising claim because trial counsel failed to seek post-conviction relief.
However, the petition filed with the post-conviction court was silent as to any grounds for tolling
the statute of limitations.

       The record does establish that the appellant was a minor at the time he entered his plea;
however, the statute of limitations was not tolled by his age without proof of further disability.
Stewart v. State, 95 S.W.3d 229, 233 (Tenn. Crim. App. 2002).




                                                  -3-
        We conclude that the post-conviction court did not err in dismissing the appellant’s pleading
as being an untimely petition for post-conviction relief. Accordingly, we affirm the judgment of the
post-conviction court.



                                                      ____________________________________
                                                      NORMA MCGEE OGLE, JUDGE




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