         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs June 28, 2005

                 STATE OF TENNESSEE V. WILLIAM J. CARICO

                 Direct Appeal from the Criminal Court for Hawkins County
                           No. CR491 James E. Beckner, Judge



                          No. E2004-02231-CCA-R3-PC - July 5, 2005


The Petitioner, William J. Carico, was convicted of aggravated rape, and the trial court sentenced
him to twenty-five years in prison. Subsequently, the Petitioner filed a petition for post-conviction
relief, and the post-conviction court dismissed the petition as untimely. On appeal, the Petitioner
contends that Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004) announced a new rule of
constitutional law that applies retroactively to his case and creates an exception to the one-year
statute of limitations for filing a post-conviction petition. Finding no reversible error, we affirm the
judgment of the post-conviction court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT ,
JR. and ALAN E. GLENN , JJ., joined.

William J. Carico, pro se, Mountain City, Tennessee.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; C.
Berkeley Bell, Jr., District Attorney General; and Doug Godbee, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                              OPINION
                                               I. Facts

        This case arises from the Petitioner’s conviction for aggravated rape, for which he received
a twenty-five year sentence. On April 27, 1998, the Petitioner’s conviction and sentence were
affirmed by the Tennessee Supreme Court on direct appeal. State v. Carico, 968 S.W.2d 280 (1998).
On August 6, 2004, the Petitioner filed a post-conviction petition, alleging that his petition was
timely because Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004), announced a new rule
of constitutional law that applies retroactively to his case, creating an exception to the one-year
statute of limitations for filing a post-conviction petition. On August 19, 2004, the post-conviction
court entered an order dismissing the petition on the basis that it fell outside the one-year statute of
limitations. The Petitioner filed a timely notice of appeal.

                                             II. Analysis

        The Petitioner asserts that the post-conviction court erred in dismissing his petition because
Blakely v. Washington, 542 U.S. __, 124 S.Ct. 2531 (2004), announced a new rule of constitutional
law that applies retroactively to his case and creates an exception to the one-year statute of
limitations for filing a post-conviction petition. The State counters that Blakely did not announce
a new rule of constitutional law, and, therefore, it does not provide the Petitioner relief from the one-
year statute of limitations required for filing a post-conviction petition. We agree with the State.

        In order to obtain post-conviction relief, a petitioner must show that his or her conviction or
sentence is void or voidable because of the abridgment of a constitutional right. Tennessee Code
Annotated section 40-30-103 (2003). The petitioner bears the burden of proving factual allegations
in the petition for post-conviction relief by clear and convincing evidence. Tenn. Code Ann. §
40-30-110(f). A post-conviction court’s factual findings are subject to a de novo review by this
Court; however, we must accord these factual findings a presumption of correctness, which is
overcome only when a preponderance of the evidence is contrary to the post-conviction court’s
factual findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s
conclusions of law are subject to a purely de novo review by this Court, with no presumption of
correctness. Id. at 457.

        The Petitioner appears to agree that he filed his post-conviction petition outside of the one-
year statute of limitations provided by the Post-Conviction Procedure Act, see Tenn. Code Ann. §
40-30-102(a) (2003), but he contends that his case falls within the exception in subsection (b)(1) of
the statute, which provides that a court shall have jurisdiction to consider a claim filed outside the
statute of limitations if the claim is:

        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[.]

Tenn. Code Ann. § 40-30-102(b)(1). The Petitioner contends that the United States Supreme Court’s
decision in Blakely establishes a previously unrecognized constitutional right for a defendant in
Tennessee to have the jury, rather that the trial court, determine the existence of aggravating factors
used to enhance a sentence.

        Recently, our Supreme Court concluded that Blakely neither announces a new rule of
constitutional law nor invalidates Tennessee’s sentencing scheme, by which a trial court is permitted,
rather than required, to enhance a sentence within the statutory range based on its finding of relevant
enhancement factors. State v. Gomez, __ S.W.3d __, 2005 WL 856848 (Tenn. Apr. 15, 2005). The
Gomez court also noted that the post-conviction standard for determining whether a new rule of
constitutional law requires retroactive application, as set forth in Tennessee Code Annotated section


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40-30-122, does not permit the retroactive application of Blakely in a post-conviction proceeding.
Id. at *13 n.16; see also Albert Smith v. State, No. W2004-02169-CCA-R3-PC, 2005 WL 1105168
(Tenn. Crim. App., at Jackson, May 6, 2005). Therefore, Blakely does not create an exception to
the one-year statute of limitations requirement in this case. We conclude that the post-conviction
court correctly dismissed the Petitioner’s post-conviction petition.

                                       III. Conclusion

        In accordance with the foregoing reasoning and authorities, we affirm the post-conviction’s
court dismissal of the Petitioner’s post-conviction petition.


                                                      ____________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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