                                                   FILED
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT NASHVILLE
                                                        May 6, 1999
                        FEBRUARY 1999 SESSION
                                                  Cecil W. Crowson
                                                 Appellate Court Clerk
PHILLIP WAYNE KELLEY,              )
                                   )
           Appellant,              )     C.C.A. No. 01C01-9804-CC-00156
                                   )
vs.                                )     Giles County
                                   )
STATE OF TENNESSEE,                )     Hon. Robert L. Jones, Judge
                                   )
           Appellee.               )     (Post-Conviction)
                                   )


FOR THE APPELLANT:                       FOR THE APPELLEE:

JOEY PENROD (at hearing and on appeal) JOHN KNOX WALKUP
Assistant District Public Defender     Attorney General & Reporter
809 S. Main St., Ste. 200
Columbia, TN 38401                     TIM BEHAN
                                       Assistant Attorney General
C. MICHAEL ROBBINS (on appeal)         425 Fifth Ave. N., 2d Floor
Attorney at Law                        Nashville, TN 37243-0493
46 N. Third St., Ste. 719
Memphis, TN 38103                      MIKE BOTTOMS
                                       District Attorney General

                                         ROBERT C. SANDERS
                                         Asst. District Attorney General
                                         P. O. Box 1619
                                         Columbia, TN 38401



OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE
                                      OPINION

              The petitioner, Phillip Wayne Kelley, appeals from the trial court's

dismissal of his claim for post-conviction relief. Kelley is presently serving three

consecutive life terms plus 25 years in the Department of Correction for his

convictions of three counts of first degree murder and one count of assault with

intent to commit murder. State v. Kelley, 683 S.W.2d 1, 2 (Tenn. Crim. App. 1984).

The trial court dismissed his post-conviction petition as untimely and substantively

without merit, and Kelley appeals from that determination. Following a review of the

record, the briefs of the parties, and the applicable law, we affirm the lower court's

dismissal.



              The petitioner's conviction became final following the Tennessee

Supreme Court's denial of permissive appeal on December 17, 1984. See id. at 1.

On September 11, 1985, Kelley filed a motion with the trial court clerk to obtain his

trial transcript. By letter dated September 17, 1985, the trial court clerk advised the

petitioner that the original transcript had been filed with the court of criminal

appeals. The court clerk suggested that the petitioner contact his trial attorney

about obtaining a copy of the transcript.



              Thereafter, according to the petitioner's testimony, he contacted his

trial attorney. The attorney indicated he would provide the transcript upon a family

member's execution of "something" the petitioner did not identify. The petitioner

further testified that his mother was the only family member he had, and she was

without transportation to his attorney's office.



              On July 28, 1991, the petitioner filed a letter again seeking a copy of

the transcript and alleging that he was seeking post-conviction relief. It appears that

this petition was amended through counsel on January 23, 1998.

                                            2
              Kelley's statute of limitations period commenced on July 1, 1986 and

expired three years later. Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995);

Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). Kelley claims his

1985 motion requesting a copy of the transcript tolled the statute of limitations. That

motion did not contain any allegations constituting a basis for post-conviction relief.

Kelley testified that the purpose of the motion was to get the transcript so that he

could get some help, presumably from someone in prison, in filing a post-conviction

petition. He admitted that he knew that what he filed was not a post-conviction

petition. Under these circumstances, the trial court correctly determined that no

timely post-conviction action had been commenced. Accord Jackie R. Reynolds v.

State, No. 328 (Tenn. Crim. App., Knoxville, May 9, 1991).



              The remaining question raised by the petitioner is whether the

application of the post-conviction statute of limitations deprived him of due process.

In this regard, Kelley relies on Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)

and Sands v. State, 903 S.W.2d 297, 298 (Tenn. 1995). In Burford, our supreme

court recognized that "under the circumstances of a particular case, application of

the statute [of limitations] may not afford a reasonable opportunity to have the

claimed issue heard and decided." Burford, 845 S.W.2d at 208. Burford was a

unique case in which the petitioner was caught in a procedural trap in which he first

had to successfully challenge convictions in a post-conviction proceeding in one

county in order to have a justiciable claim for relief in post-conviction proceedings

in another county. Id. He was caught in a quandary because the approach of the

statute of limitations applicable to the latter claim was looming prior to a

determination of the former claim. Id. The supreme court found the application of

the statute of limitations to the latter claim violative of due process in that limited

circumstance and allowed the Burford petitioner to maintain his claim

notwithstanding the statute of limitations. See id. at 209-10.

                                          3
                  Similarly, in Sands, the petitioner alleged that the jury instructions

used in his 1977 trial were found unconstitutional by the United States Supreme

Court in 1979.       Sands, 903 S.W.2d at 298. Sands initiated his post-conviction

claim in 1990,1 well outside the three year statute of limitations. See id. In passing

on the claim, the supreme court concluded that the basic rule of Burford was that

"due process prohibits the strict application of the post-conviction statute of

limitations to bar a petitioner's claim when the grounds for relief, whether legal or

factual, arise . . . after the point at which the limitations period would normally have

begun to run." Id. at 301.



                  In the case before the court, the petitioner concedes that his claim is

not later arising such that a strict reading of Burford and Sands would provide relief

from the statute of limitations. He argues, however, that due process principles

should be more broadly applied than a narrow reading of Burford and Sands would

allow. To that end, he urges that the relevant inquiry should be whether the

petitioner, through no fault of his own, has been unable to comply with the statute

of limitations.



                  The weakness of this argument is that this court has narrowly applied

the principles of Burford and Sands. We have rejected claims that a petitioner's

ignorance of the statute of limitations should toll its application. See, e.g., Brown

v. State, 928 S.W.2d 453, 456 (Tenn. Crim. App. 1996). Likewise, we have said

that illiteracy is not a basis for tolling. See, e.g., Bernard Nelson v. State, No.

01C01-9212-CC-00375, slip op. at 4 (Tenn. Crim. App., Nashville, Nov. 18, 1993).

We have held that lack of access to legal materials due to out-of-state incarceration

and even reliance on erroneous legal advice does not toll the statute. Sands, 903



       1
           Sands had filed two earlier post-conviction actions.

                                             4
S.W.2d at 300-01; see also State v. Phillips, 904 S.W.2d 123, 123-24 (Tenn. Crim.

App. 1995) (reliance on legal advice). Most damning for the petitioner at bar,

however, is our ruling that a petitioner's inability to obtain his trial transcript does not

toll the statute of limitations. State v. Jimmy Sills, No. 03C01-9410-CR-00370, slip

op. at 6 (Tenn. Crim. App., Knoxville, May 10, 1995), perm. app. denied (Tenn.

1995).



               Thus, we find no due process deprivation on the facts of this case.

The judgment of the trial court is therefore affirmed.



                                             ________________________________
                                             JAMES CURWOOD WITT, JR., JUDGE


CONCUR:


_______________________________
DAVID G. HAYES, JUDGE


_______________________________
JOHN EVERETT WILLIAMS, JUDGE




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