            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                             Assigned on Briefs September 25, 2002

                  JAMES E. SWIGGETT v. STATE OF TENNESSEE

                        Appeal from the Criminal Court for Greene County
                            No. 02CR001     James E. Beckner, Judge



                                     No. E2002-00174-CCA-R3-PC
                                           October 15, 2002

The Defendant, James E. Swiggett, was convicted by a jury in 1992 of first degree premeditated
murder. His conviction was affirmed on direct appeal. See State v. James Swiggett, No. 03C01-
9209-CR-00312, 1994 Tenn. Crim. App. LEXIS 766 (Knoxville, Nov. 23, 1994), perm. appeal den.
(Tenn. 1995). The Defendant subsequently filed for post-conviction relief, which petition was
denied by the trial court as barred by the statute of limitations. This ruling was affirmed on direct
appeal. See James E. Swiggett v. State, No. 03C01-9804-CR-00161, 1999 Tenn. Crim. App. LEXIS
422 (Knoxville, May 4, 1999), perm. appeal den. (Tenn. 1999). The Defendant then filed the instant
petition for post-conviction relief, claiming grounds for tolling the statute of limitations. The trial
court summarily dismissed the instant petition on the grounds that a prior petition had already been
filed. This appeal followed. We affirm the judgment of the trial court.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.
GLENN, JJ., joined.

James E. Swiggett, Mountain City, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Braden H. Boucek, Assistant Attorney General;
and C. Berkeley Bell, District Attorney General, for the appellee, State of Tennessee.

                                                  OPINION

        The Defendant asserts as grounds for post-conviction relief that he has newly discovered
evidence; that his indictment was unconstitutional; and that his jury instructions were
unconstitutional.1 We first note that this petition was filed on January 4, 2002, more than six years
after the supreme court denied the Defendant permission to appeal from his conviction. The statute


        1
          The record before us contains no description of the allegedly newly discovered evidence, no copy of the
allegedly uncon stitutional indictment, and no co py of the allegedly unco nstitutional jury instructions.
of limitations for post-conviction relief in this case expired on May 10, 1996. See Tenn. Code Ann.
§ 40-30-201, Compiler’s Notes (1997).2

        The trial court summarily dismissed the instant petition on the basis of Tennessee Code
Annotated section 40-30-202(c), which provides in pertinent part that, “[i]n no event may more than
one (1) petition for post-conviction relief be filed attacking a single judgment.” However, the
section provides for the summary dismissal of additional post-conviction petitions only where the
prior petition “was resolved on the merits by a court of competent jurisdiction.” Id. The Defendant’s
prior petition was not resolved on the merits but was dismissed as time-barred. Accordingly, the trial
court erred by summarily dismissing the instant petition on the grounds set forth.

       Nevertheless, the instant petition is subject to summary dismissal on the grounds that it is
time-barred. As set forth above, the limitations period for the filing of post-conviction claims in the
Defendant’s case expired in 1996. Tennessee Code Annotated section 40-30-202(a) provides in
pertinent part that
                [t]he statute of limitations shall not be tolled for any reason, including
                any tolling or saving provision otherwise available at law or equity.
                Time is of the essence of the right to file a petition for post-conviction
                relief or motion to reopen established by this chapter, and the one-
                year limitations period is an element of the right to file such an action
                and is a condition upon its exercise. 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.



          The Defendant contends that the instant petition meets the exception provided in subsection

(b)(1):

                         The claim in the petition is based upon a final ruling of an
                 appellate court establishing a constitutional right that was not
                 recognized as existing at the time of trial, if retrospective application
                 of that right is required. Such petition must be filed within one (1)
                 year of the ruling of the highest state appellate court or the United
                 States supreme court establishing a constitutional right that was not
                 recognized as existing at the time of trial.




          2
          Our supreme court denied perm ission to appeal from the Defendant’s original conviction on March 27, 1995.
See State v. James Swiggett, No. 03C0 1-9209-CR -00312, 199 5 Tenn. LE XIS 15 2 (Knoxville, Mar. 27, 1995 ).

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Tenn. Code Ann. § 40-30-202(b)(1). The gist of the Defendant’s argument is that, in Fiore v. White,
531 U.S. 225, 121 S. Ct. 712, 148 L. Ed. 2d 629 (2001), the United States Supreme Court created
a constitutional right not previously recognized: that a state court’s recent interpretation of prior
law must be retroactively applied. We conclude, however, that the Defendant misapprehends the
holding of Fiore.

        In Fiore, the defendant had been convicted by a Pennsylvania state court of operating a
hazardous waste facility without a permit. After the defendant’s conviction had become final,
Pennsylvania’s supreme court interpreted the relevant statute for the first time and “made clear that
Fiore’s conduct was not within its scope.” Id., 531 U.S. at 226. Nevertheless, Pennsylvania’s courts
refused to grant Fiore collateral relief. Upon query by the Supreme Court, the Pennsylvania Supreme
Court indicated that its interpretation of the statute was not a new interpretation, but rather a correct
statement of the law at the time Fiore’s conviction became final. The United States Supreme Court
set forth the issue before it as “whether Pennsylvania can, consistently with the Federal Due Process
Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not
prohibit[?]” Id., 531 U.S. at 228. The Supreme Court held that it could not. See id., 531 U.S. at
228-29.

        The holding of Fiore, in a nutshell, is that when a defendant is convicted of violating a statute
which is eventually determined not to ban the conduct in which the defendant engaged, the
defendant’s conviction cannot withstand a federal due process challenge. Fiore does not apply to
the Defendant’s case. The Defendant’s complaint is not that he was convicted of murder based on
conduct that was later recognized as not constituting murder, but that his indictment and jury
instructions did not sufficiently differentiate the terms “premeditation” and “deliberation.” The
Defendant relies on State v. Brown, 836 S.W.2d 530 (Tenn. 1992), which addressed the propriety
of the jury instruction “premeditation may be formed in an instant,” and determined that it should
be abandoned as potentially confusing. See id. at 543.

        However, our supreme court has since held that “Brown did not announce a new state
constitutional rule, did not implicate any constitutional right, is not retroactive, and may not serve
as the basis for post-conviction relief.” Miller v. State, 54 S.W.3d 743, 744 (Tenn. 2001). Contrary
to the Defendant’s assertions, Fiore does not create a new constitutional right requiring this Court
to reexamine the Defendant’s indictment and jury instructions in light of Brown. Accordingly, Fiore
does not provide the Defendant relief from the application of the statute of limitations to his post-
conviction claims.

         Furthermore, although the Defendant refers in his petition to “newly discovered evidence,”
this allegation is completely unsupported by any assertions of fact. Cf. Tenn. Code Ann. § 40-30-
204(e) (requiring a post-conviction petitioner to “include allegations of fact supporting each claim
for relief set forth in the petition”). Moreover, the Defendant’s bare assertion does not rise to the
level of new evidence required to toll the statute of limitations. See id. § 40-30-202(b)(2) (“[n]o
court shall have jurisdiction to consider a petition filed after [the statute of limitations has expired]



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unless: [t]he claim in the petition is based upon new scientific evidence establishing that such
petitioner is actually innocent of the offense or offenses for which the petitioner was convicted.”)

       In short, the Defendant has offered no grounds upon which the statute of limitations
governing his post-conviction petition may be tolled, and this issue is therefore without merit.

         We note that the Defendant styled his pleading in the alternative as a writ of error coram
nobis. Although the trial court did not specifically address the Defendant’s claim as a writ of error
coram nobis, we conclude that the Defendant’s claim for relief upon this ground is also time-barred,
because it was not filed within one year of the date on which the judgment of conviction became
final in the trial court. See Tenn. Code Ann. §§ 40-26-105; 27-7-103; State v. Mixon, 983 S.W.2d
661, 670 (Tenn. 1999). Nor has the Defendant alleged grounds sufficient to toll the running of the
statute of limitations upon principles of due process. Cf. Workman v. State, 41 S.W.3d 100, 101
(Tenn. 2001) (due process concerns may justify tolling the limitations period applicable to writs of
error coram nobis where “newly discovered evidence may prove that the defendant is actually
innocent of the capital crime of which he was convicted.”) In short, the Defendant’s claims are time-
barred, no matter how he chooses to style them.

       The judgment of the trial court is affirmed.




                                                      ___________________________________
                                                      DAVID H. WELLES, JUDGE




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