           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                        DECEMBER SESSION, 1996


RONALD L. COX,              )      C.C.A. NO. 02C01-9508-CR-00221
    Appellant,              )
                            )
                            )      SHELBY COUNTY
VS.                         )
                            )      HON. JOSEPH B. DAILEY
STATE OF TENNESSEE,         )      JUDGE
                            )
      Appellee.             )      (Habeas Corpus)



FOR THE APPELLANT:                 FOR THE APPELLEE:

RONALD COX                         CHARLES W. BURSON
Pro Se                             Attorney General and Reporter
Unit 3B/Route 1
T.C.I.P                            CLINTON J. MORGAN
Only, TN 37140                     Assistant Attorney General
                                   450 James Robertson Parkway
                                   Nashville, TN 37243

                                   WILLIAM L. GIBBONS
                                   District Attorney General

                                   ROBERT CARTER
                                   Assistant District Attorney
                                   201 Poplar Avenue
                                   Memphis, TN 38103


OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                   OPINION


       Appellant Ronald L. Cox appeals from the trial court’s dismissal of his pro

se petition for the writ of habeas corpus. In May 1995, Appellant filed a petition

for the writ of habeas corpus alleging that in October 1989 he entered into a plea

agreement with the State wh ereby he pled guilty to two counts of robbery, one

count of aggravated robbery, and one count of aggravated assault in exchange

for an effective sentence of ten years, Range 1, at thirty percent. He alleged that

the State bre ached the agre emen t becau se he w as not pa roled after hav ing

served thirty percent of his sentence. In his petition for the writ of habeas corpus,

Appellant further claimed that when he pled guilty he did not understand that

service of the thirty percent of his sentence merely made him eligible for release

but did not mandate it. On June 21, 1995, the trial court summarily dismissed

Appe llant’s petition. The trial court dismissed the petition stating that Appellant

failed to state ap propriate grounds for e ither hab eas co rpus relief o r post-

conviction relief and that the petition, treated as a petition for post-conviction

relief, was time-barred. On appeal, Appellant raises two issues: 1) whether the

trial court erred in dismissing his petition for the writ of habeas corpus, and 2)

whether coun sel sho uld ha ve bee n app ointed and a n evide ntiary hearing he ld

before the petition was dism issed. For the rea sons stated b elow, we affirm the

decision of the trial cou rt.



       Breach of a plea agreement by the State is grounds for post-conviction

relief and has been recognized as such in several of this Cou rt’s cases . See e.g.

Brown v. State, 928 S.W.2d 453 (Tenn. Crim. A pp. 199 6); Tem pleton v. S tate,

1995 WL 2995, a t *1 (Ten n. Crim. A pp. Jan . 5, 1995) . Moreover , Appella nt’s

                                         -2-
claim is essentially an involuntary plea claim, cognizable under the Po st-

Conviction Procedure Act. Tenn. Code Ann. § 40-30 -203 (S upp. 19 96). A

challenge to the validity of a guilty plea can be made only by a p etition for po st-

conviction relief and not by a petition for the w rit of habea s corpu s. Archer v.

State, 851 S.W.2d 157, 164 (Tenn. 1993). We have also held, at least by

implication, that claims of brea ched prom ises regarding a release da te are

cognizab le only under the Post-Conviction Procedure Act and not as a petition

for the writ of habeas corpu s. See Templeton, 1995 WL 2995 , at *1. W hile

Appe llant’s claim is cogniza ble in a pe tition for post-c onviction re lief, we find, as

the trial court did, that the claim is time-barred by the statute of limitations found

at Tenn. C ode Ann . Sec. 40-30-1 02 (1990).



       Appellant’s guilty plea was entered in November 1989. Under the 1986

Post-Conviction Procedure Act, Appellant had three years fr om th is date w ithin

which to file a petition. Tenn. Code Ann. § 40-30-102. Therefore, his time period

for filing a petition for post-conviction relief exp ired in November 1992. Appellant

argues that the statute of lim itations sho uld not ap ply to him because he did not

have grounds for relief until after the parole board denied his parole at which

point the limitations period had expired. It is true that in some cases due process

prohibits the stric t applic ation o f the sta tute of lim itations period found in

Tennessee Code Annotated Section 40-30-105. In Burford v. State, 845 SW.2d

204, 208 (Tenn. 1992), the Tennessee Supreme Court held that due process

prohibits the strict application of the statute of limitations when the grounds for

relief arise after the final action of the highest state appellate court to which an

appeal is taken, or in other words, when the grounds for relief arise after the

statute of limitatio ns pe riod be gins to run. H owev er, Ap pellan t’s claim for relief

                                           -3-
existed from the time o f his con viction. T his Co urt has held th at a pe titioner’s

professed lack of knowledge that he had grounds for relief until after the statute

of limitations had run is not “later arising” under the Burford decision and cannot

defeat the app lication of the statute of limitations. Templeton, 1995 WL 2995, at

*1; Brown, 928 S.W.2d at 457. Finally, the fact that Appellant filed under the

amended Post-Conviction Procedure Act, Tenn. Code Ann. Sec. 40-30-205, does

not chang e the ou tcome . Petitions barred by the statute of limitations contained

in the 198 6 Act m ay not be revived by filing under th e ame nded a ct. See e.g.

State v. Brum mit, 1997 W L 1066 79 (Te nn. Crim . App. M ar. 11, 19 97), applic . filed

(Tenn. Mar. 17, 1997 ); Carter v. S tate, 1997 WL 59422 (Tenn. Crim. App. Feb.

12, 1997); Pend leton v. Sta te, 1997 W L 59501 (T enn. Crim. A pp. Feb. 12, 1 997),

applic . filed (Tenn. Ma r. 24, 1997).



       Next, we addres s whether it was proper for the trial judge to dismiss

Appe llant’s petition without appointing counsel and without conducting an

evidentiary hearing. W here a com petently drafted petition and all pleadings, files,

and records of a case conclusively establish that the petitioner is entitled to no

relief, appointment of counsel and an evidentiary hearing are not required . Lane

v. State, 906 S.W .2d 1, 3 (Tenn. Crim . App. 1993 ). Because Appellant’s petition

was clearly tim e-bar red, the trial court properly dismissed the petition without

appointing counsel or conducting an evidentiary hearing.



       The judgment of the trial court is affirmed.




                                          -4-
                         ____________________________________
                         JERRY L. SMITH, JUDGE



CONCUR:



___________________________________
JOE B. JONES, PRESIDING JUDGE


___________________________________
JOSEPH M. TIPTON, JUDGE




                              -5-
