         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 17, 2000

               JOHN HAWS BURRELL v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Anderson County
                         No. 99CR0119     James B. Scott, Jr., Judge



                                  No. E1999-02762-CCA-R3-PC
                                        January 8, 2001

The Defendant, John Haws Burrell, appeals as of right from the dismissal of his petition for post-
conviction relief. The trial court dismissed his petition without an evidentiary hearing as barred by
the statute of limitations. The Defendant argues on appeal that the statute of limitations should not
have expired until one year after certiorari had been denied by the United States Supreme Court. We
affirm the judgment of the trial court dismissing the Defendant’s post-conviction petition as time-
barred.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS, J., and
WILLIAM B. ACREE, JR., SP .J., joined.

Andrew N. Hall, Wartburg, Tennessee, for the appellant, John Haws Burrell.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

        The Defendant was convicted of twelve counts of sexual battery, three counts of rape, and
two counts of coercion of a witness. For these offenses, he received an effective sentence of twenty-
four years. We affirmed his convictions on direct appeal, and the Tennessee Supreme Court denied
review. See State v. John Haws Burrell, No. 03C01-9404-CR-00157, 1997 WL 53455 (Tenn. Crim.
App., Knoxville, Feb. 11, 1997), perm. app. denied (Tenn. Oct. 6, 1997). The Defendant
subsequently filed a petition for a writ of certiorari, seeking review of his convictions by the United
States Supreme Court. The United States Supreme Court denied certiorari on April 6, 1998. See
Burrell v. Tennessee, 523 U.S. 1062 (1998). On March 31, 1999, the Defendant filed a petition for
post-conviction relief, which was summarily dismissed as barred by the statute of limitations.
         Relief under our Post-Conviction Procedure Act will be granted when a defendant’s
conviction or sentence is void or voidable because of the abridgment of any right guaranteed by
either the Tennessee Constitution or the United States Constitution. Tenn. Code Ann. § 40-30-203.
However, in order to seek such relief, a defendant

         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 . .
         . .The 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 . . . , and the one-year limitations
         period is an element of the right to file such an action and is a condition upon its
         exercise.

Id. § 40-30-202(a) (emphasis added).1

        Pursuant to the rules of statutory construction, we must “examine the language of a statute
and, if unambiguous, apply its ordinary and plain meaning.” Seals v. State, 23 S.W.3d 272, 276
(Tenn. 2000). The statute in question states clearly and unambiguously that the one-year limitations
period begins to run on the date of the final action of the highest state appellate court to which an
appeal is taken. See Tenn. Code Ann. § 40-30-202(a). The United States Supreme Court is
obviously not a state appellate court; therefore, under the statute, the Defendant should have filed
his petition for post-conviction relief by October 6, 1998. Because his petition was not filed until
March of 1999, it was barred by the statute of limitations.

         Notwithstanding, the Defendant asserts that due process requires the tolling of the statute of
limitations while his petition for certiorari was pending before the United States Supreme Court.
Although post-conviction procedures are not constitutionally required, “once a state chooses to
provide post-conviction remedies, it must do so in a manner that meets Constitutional standards.”
Davis v. State, 912 S.W.2d 689, 695 (Tenn. 1995). While recognizing that our statute explicitly
states that the “statute of limitations shall not be tolled for any reason,” our supreme court, applying
due process standards, held in Seals v. State that the “application of the statute must not deny a
petitioner a reasonable opportunity to raise a claim in a meaningful time and manner.” Seals, 23
S.W.3d at 276-79. In determining whether the application of the statute of limitations violates due
process, “[t]he test is ‘whether the time period provides an applicant a reasonable opportunity to have
the claimed issue heard and determined.’” Id. at 278 (quoting Burford v. State, 845 S.W.2d 204, 208
(Tenn. 1992)). In Seals, the supreme court determined that a person who was mentally incompetent
and therefore legally incapable of asserting his or her constitutional rights would be denied the
opportunity to assert his or her rights in a post-conviction petition unless the limitations period was

         1
          The statute establishe s three excep tions to the on e-year statute of limitations, none of which are applicable here.
Those exceptions allow for post-conviction consideration if a petition is filed within one year of a ruling establishing a
new constitutio nal right given re troactive ap plication, if a petition is based on new scientific evidence establishing the
innocence of the defendant, and if a petition is filed within one year of a judgment invalidating a conviction that was used
to enhance a sentence. See Tenn. C ode Ann . § 40-30 -202(b) .

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suspended during the period of incompetence. Id. The court thus held that “due process requires
tolling of the statute of limitations where a defendant is denied the reasonable opportunity to assert
a claim in a meaningful time and manner due to mental incompetence.” Id. at 279.

        In this case, there is no assertion that the Defendant was mentally incompetent. In fact, the
Defendant makes no argument that he was denied the reasonable opportunity to assert his claims in
a meaningful time and manner. He argues only that his petition for certiorari to the United States
Supreme Court should have tolled the statute of limitations. We disagree. There is no reason why
a defendant cannot seek post-conviction relief pursuant to our Post-Conviction Procedure Act while
his or her petition for certiorari to the United States Supreme Court is pending. Accordingly, the
filing of a petition for certiorari to the United States Supreme Court does not deny a defendant the
reasonable opportunity to assert his or her claims in a meaningful time and manner. Thus, we hold
that due process does not require tolling the statute of limitations while a petition for certiorari is
pending before the United States Supreme Court.

       Pursuant to statute, the Defendant had one year from the time the Tennessee Supreme Court
denied permission to appeal to file a petition for post conviction relief. See Tenn. Code Ann. § 40-
30-202(a). Because he did not file his petition within this time period, his petition for post-
conviction relief was barred by the statute of limitations. Therefore, the judgment of the trial court
dismissing the Defendant’s petition is affirmed.



                                                       ___________________________________
                                                       DAVID H. WELLES, JUDGE




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