        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                               FILED
                           AT KNOXVILLE                     September 27, 1999

                                                             Cecil Crowson, Jr.
                         JULY SESSION, 1999                 Appellate Court Clerk




THO MAS E UGE NE G RAHAM ,)     C.C.A. NO. 03C01-9809-CR-00337
                          )
     Appe llant,          )
                          )
                          )     HAMILTON COUNTY
VS.                       )
                          )     HON. STEPHEN M. BEVIL,
STATE OF TENNESSEE,       )     JUDGE
                          )
     Appellee.            )     (Post-Conviction)


              ON APPEAL FROM THE JUDGMENT OF THE
              CRIMINAL COURT OF HAMILTON COUNTY


FOR THE APPELLANT:              FOR THE APPELLEE:

HEIDI A. BARCUS                 MICHAEL E. MOORE
606 W. Main, Suite 202          Solicitor General
Knoxville, TN 37902
                                TODD R. KELLEY
                                Assistant Attorney General
                                425 Fifth Avenu e North
                                Nashville, TN 37243

                                JERRY N. ESTES
                                District Attorney General

                                BARRY STEELMAN
                                Assistant District Attorney General
                                Suite 300 - Courts Building
                                600 Market Street
                                Chattanooga, TN 37402



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                    OPINION
          This case presents us with a second opportunity to consider the

Defe ndan t’s reques t for post-co nviction relief. Although the Defendant, Thomas

Eugene Graha m, pres ents four issues for our review, we must first resolve the

question of whether we reach the merits of the petition.               Essential to our

resolution of this matter is an analysis of the rather lengthy procedural history of

the case. We conclude that co nside ration o f the m erits of th e petitio n is barred

and the refore affirm the trial cour t’s denial of p ost-con viction relief.



          The Defendant was convicted of aggravated rape, aggravated kidnaping,

and aggravated burglary in 1991. He was sentenced to twenty-five years for the

aggravated rape conviction, twenty-five years for the aggravated kidnaping

conviction, and six ye ars for the a ggravate d burgla ry conviction . On app eal to

this Cour t in 199 3, his convictions were affirmed; howe ver, this Court reduced the

length of his sentence for aggravated kidnaping to twelve years.1 On October 4,

1993, the Tennessee Supreme Court denied the Defendant’s application for

perm ission to app eal.



          In July of 1994 , the Defe ndant filed a petition for post-con viction relief.

After an evidentiary hearing, the trial court denied the Defendant’s request for

relief.       This Court affirmed the denial of the petition on June 24, 1996. 2




          1
         State v. Thomas Eugene Graham, No. 03C01-9112-CR-00391, 1993 WL 218264
(Tenn. Crim. App., Knoxville, June 22, 1993).
          2
         Thomas Eugene Graham v. State, No. 03C01-9506-CR-00181, 1996 WL 341600
(Tenn. Crim. App., Knoxville, June 24, 1996).

                                            -2-
Application for permission to appeal to the Tennessee Supreme Court was

denied.



          On Octob er 8, 199 6, the De fendan t filed a mo tion to reop en his po st-

conviction petition. The trial court overruled the motion on October 14, and the

Defendant filed anoth er motio n to reopen his post-conviction petition on April 14,

1997. Upon reco nsideration of the matter, the trial court granted the motion,

ordering that the Defendant’s motion to reopen be treated as a post-conviction

petition. On August 21, 1997, the Defendant filed an “Amended Petition for Relief

from Conviction of Se ntence.” Th e trial court conduc ted an eviden tiary hearing

on November 26, 19 97, wh ich res ulted in the de nial of th e Def enda nt’s petition.

The Defendant now appeals the denial of his second petition for post-conviction

relief.



          Tennessee Code Annotated § 40-30-217 outlines the proce dure for filing

“[m]otion s to reop en.” It states , in pertinen t part,

          A petitioner m ay file a mo tion in the trial court to reopen the first
          post-conviction petition only if the following applies:
                 (1) The claim in the motion is based upon a final ruling of an
          appellate court esta blishing a constitution al right that was not
          recognized as existing at the time of trial, if retrospective application
          of that right is required. Such motion must be filed within one (1)
          year of the ruling of the high est state appellate court or the United
          States supreme court establishing a constitutional right that was not
          recognized as existing at the time of trial; or
                 (2) The cla im in the m otion is base d upo n new scient ific
          evidence estab lishing that su ch pe titioner is actua lly innocent of the
          offense or offenses for which the petitioner was convicted; or
                 (3) The claim asserted in the motion seeks relief from a
          sentence that was enhanced because of a previous conviction and
          such conviction in the case in which the claim is asserted was not
          a guilty plea w ith an agreed sentence, and the previous conviction
          has subsequently been held to be invalid, in which case the motion
          must be filed within one (1) year of the finality of the ruling holding
          the previous conviction to be invalid; and

                                             -3-
              (4) It appears that the facts u nderly ing the claim , if true, wo uld
       establish by clea r and c onvinc ing evid ence that the petition er is
       entitled to have the conviction set aside or the sentence reduced.


Tenn. C ode Ann . § 40-30-217 (a)(1)-(4) (1997).


       In its order denying the Defendant’s second petition for post-conviction

relief (originally filed as a motion to reopen the petition for post-conviction relief),

the trial court po inted out th at in supp ort of his argument, the Defendant relied

upon the opinio n of this Cour t in State v. Hill, No. 01C01-9508-CC-00267, 1996

W L 346941 (Tenn. Crim. A pp., Nas hville, Jan. 6, 1 997), rev’d, 954 S.W.2d 725

(Tenn. 1997). The Hill case was pending before our supreme court at the time

the Defendant filed his motion to reopen his post-conviction petition, and the

holding of this Court in Hill was subsequently reversed by the Tennessee

Supreme Court. See id. The trial court stated , “This Court overruled the motion

[to   reopen   po st-conviction     proceedings]      on   October     14 th ,   but   upon

reconsideration, since the Hill case was pending in the Tennessee Supreme

Court, this Court granted the motion to re-open the petition.” Neither the holding

of this Court nor the holding of the Tennessee Supreme Court in Hill established

“a cons titutiona l right that was n ot recog nized as existing at the time of trial.”

Tenn. Code Ann. § 4 0-30-21 7(a)(1) (19 97); see State v. Hill, No. 01C01-9508-

CC-00267, 1996 WL 346941 (Tenn. Crim. App., N ashville, Ja n. 6, 1997 ), rev’d,

954 S.W.2d 725 (Tenn. 1997). Nor does the Defendant enunciate any other v alid

reason , as enum erated in Tenn essee Code Annota ted § 40 -30-217 , to support

the filing of his motion. Tenn. Code Ann. § 40-30-217(a)(1)-(4) (1997 ). We

therefore conclude that the trial judge erred by granting the Defendant’s motion

to reopen his post-conviction petition.




                                           -4-
      Furthermore, if the motion to reopen is treated as a new post-conviction

petition, it is barred under Tennessee Code A nnotated § 40-30-202, which

provides:

     (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) ye ar of the da te
     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 the tolling or saving provision otherwise
     availab le at law or eq uity. Time is of the essen ce of the rig ht to file
     a petition for post-conviction relief or mo tion to reopen established by
     this chapter, and the one-year limitations period is an element of the
     right to file such an ac tion 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.
              (b) No court sh all have jurisdiction to cons ider a petition filed
      after such time unless:
              (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 req uired. Su ch petition must be filed within one (1)
      year of the ruling of the high est state appe llate court or the United
      States supreme court establishing a constitutional right that was not
      recog nized as exis ting at th e time of trial;
              (2) The claim in the pe tition is b ased upon new s cientific
      evidence establishing that such petitioner is actually innocent of the
      offense or offenses for which the petitioner was convicted; or
              (3) The claim asse rted in th e petitio n seeks relief from a
       sentence that was enhanced because of a previous conviction and
       such convic tion in th e cas e in wh ich the claim is asserted was not
       a guilty plea w ith an agreed sentence, and the previous conviction
       has subsequently been held to be invalid, in which case the petition
       must be filed within one (1) year of the finality of the ruling holding
       the previous conviction to be invalid.
              (c) This part contemplates the filing of only one (1) petition for
      post-conviction relief. In no event may more than one (1) petition for
      post-conviction relief be filed attacking a single judgment. If a prior
      petition has been filed which w as reso lved on th e merits by a court
      of competent jurisdiction, any second or subsequent petition shall be
      sum marily dism issed . A petitio ner may move to reopen a post-
      convic tion proceeding that has been concluded, under the limited
      circumstances set out in § 40-30-217.




                                         -5-
Id. § 40-30-20 2 (emph asis added ).



       The new Post-Conviction Procedure Act, cited in part above , gover ns this

petition and all petitions and motions to reopen petitions for post-conviction relief

filed after May 10, 199 5. Id. Relying on the new act, we conclude that the trial

judge erred in treating the Defendant’s motion to reopen his petition as a new

post-conviction petition. A second petition for post-conviction re lief is clearly

barred by the new act, and the act emphasizes that any such second petition

“shall be summ arily dismissed.” Id. § 40-30-202(c). Although we conclude that

the trial court erred by treating the Defendant’s motion to reopen as a second

post-conviction petition,     thereby    entertainin g   a   secon d    post-conviction

procee ding, we concu r in the trial cou rt’s denial of p ost-con viction relief.



       Accord ingly, we affirm the trial cour t’s denial of p ost-con viction relief.




                                   ____________________________________
                                   DAVID H. WELLES, JUDGE




                                           -6-
CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




                              -7-
