        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs May 19, 2015

              DARIEN C. HOUSTON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Hamilton County
                       No. 292904   Rebecca J. Stern, Judge


                 No. E2014-02062-CCA-R3-PC – Filed June 10, 2015


The Petitioner, Darien C. Houston, appeals as of right from the Hamilton County
Criminal Court’s summary dismissal of his petition for post-conviction relief. The
Petitioner contends that the post-conviction court erred in summarily dismissing his
petition for post-conviction relief for having been untimely filed. Following our review,
we affirm the judgment of the post-conviction court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and CAMILLE R. MCMULLEN, J., joined.

Darien C. Houston, Jonesville, Virginia, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; and Ahmed A. Safeeullah,
Assistant Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       In 1998, the Petitioner pled guilty to possession of cocaine with intent to sell and
possession of marijuana with intent to sell and received an effective eight-year sentence.
The Petitioner’s effective sentence was to be served on split confinement, having to serve
eleven months and twenty-nine days in confinement with the remainder to be spent on
community corrections. In 1999, the trial court amended the judgments of conviction “to
substitute intensive probation . . . for community corrections.” The Petitioner’s probation
was revoked twice, and he served the remainder of his sentences in confinement. The
Petitioner’s sentences are now expired.

      On September 22, 2014, the Petitioner filed a form petition for federal writ of
habeas corpus in the post-conviction court. The petition alleged that the trial court’s
entry of amended judgments changing his alternative sentences from community
corrections to intensive probation created an illegal sentence and breached his plea
agreement. The petition also alleged that trial counsel was ineffective for allowing the
trial court to alter the form of the Petitioner’s alternative sentences. In the petition, the
Petitioner admitted to attending the hearing at which the amended judgments were
entered. The post-conviction court treated the petition as one for post-conviction relief
and summarily dismissed it as having been untimely filed. This appeal followed.

        At the outset, we note that an illegal sentence is a sentence that is either not
authorized by the applicable statutes or directly contravenes an applicable statute. Davis
v. State, 313 S.W.3d 751, 759 (Tenn. 2010). An alternative sentence of intensive
probation is neither an unauthorized sentence nor directly contravenes an applicable
statute; therefore, the Petitioner’s sentences were not illegal. To the extent that the
Petitioner argues that the amended judgments rendered his guilty pleas not knowingly
and voluntarily entered, such a claim is not cognizable in a habeas corpus proceeding.
Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). Rather, the Post-Conviction
Procedure Act provides the proper procedure for raising such an issue. Id. at 163.

        Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. A
petition for post-conviction relief must be filed “within one (1) year of the date 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 . . . .” Tenn.
Code Ann. § 40-30-102(a). Here, the Petitioner did not file a direct appeal; therefore, the
statute of limitations expired on September 17, 1999.

        “[T]he right to file a petition for post-conviction relief . . . shall be extinguished
upon the expiration of the limitations period.” Tenn. Code Ann. § 40-30-102(a). “If it
plainly appears from the face of the petition, any annexed exhibits or the prior
proceedings in the case that the petition was not filed . . . within the time set forth in the
statute of limitations, . . . the judge shall enter an order dismissing the petition.” Tenn.
Code Ann. § 40-30-106(b). The Post-Conviction Procedure Act is explicit that the one-
year statute of limitations “shall not be tolled for any reasons, including any tolling or
saving provision otherwise available at law or equity.” Tenn. Code Ann. § 40-30-102(a).

        The Act provides for only three narrow factual circumstances in which the statute
of limitations may be tolled, none of which the Petitioner alleges apply to his case. See
Tenn. Code Ann. § 40-30-102(b). In addition to the statutory circumstances, our supreme
court has held that due process principles may require tolling the statute of limitations.
Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013). Here, the Petitioner claims
that the statute of limitations should be tolled because, despite the fact that he was present
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at the hearing where the amended judgments were entered, he was unaware “that the
[trial] court changed the judgment[s] in this case until [A]pril of 2014.”

      This court has repeatedly held that a petitioner’s ignorance of post-conviction
procedures and “mere lack of knowledge that a claim exists” does not constitute a due
process violation which would toll the statute of limitations. Joshua Jacobs v. State, No.
M2009-02265-CCA-R3-PC, 2010 WL 3582493, at *3 (Tenn. Crim. App. Sept. 15, 2010),
perm. app. denied (Tenn. Jan. 20, 2011). Accordingly, we conclude that the post-
conviction court did not err in summarily dismissing the Petitioner’s petition as having
been untimely filed.

       Upon consideration of the foregoing and the record as a whole, the judgment of
the post-conviction court is affirmed.

                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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