             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                 Assigned on Briefs August 17, 2004

                     BERNIE R. MCGILL v. STATE OF TENNESSEE

                           Appeal from the Criminal Court for Knox County
                             No. 74853    Richard Baumgartner, Judge



                      No. E2004-00142-CCA-R3-PC - Filed September 23, 2004



The Appellant, Bernie R. McGill, appeals the dismissal of his petition for post-conviction relief by
the Knox County Criminal Court. The post-conviction court concluded that it was without
jurisdiction to review McGill’s claims because the petition was filed outside the one-year limitation
period. After review, we affirm the dismissal of the petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR. and
ALAN E. GLENN JJ., joined.

J. Liddell Kirk, Knoxville, Tennessee, for the Appellant, Bernie R. McGill.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helen Walton
Yarbrough, Assistant Attorney General; Randall E. Nichols, District Attorney General; and Phillip
Morton, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                                     OPINION

                                               Procedural History

        On April 2, 2001, the Appellant pled guilty to voluntary manslaughter and received a ten-year
sentence in the Department of Correction. No direct appeal was taken in the case. The Appellant
concedes that the judgment became final on May 2, 2001, thirty days after entry of his guilty plea.
The Appellant, proceeding pro se, filed the instant petition for post-conviction relief alleging various
constitutional claims.1 The petition was filed with the clerk’s office on May 9, 2002. Although


         1
          W e note with interest the Appellant’s comments with regard to paragraph eleven of the petition: “11. If more
than one (1) year has passed since the date of final action on your direct appeal by the state appellate court, state why
                                                                                                           (continued...)
required by Tennessee Code Annotated section 40-30-104 (2003), the petition is neither dated nor
sworn to. At the request of the Appellant, counsel was appointed and the amended ground of
ineffective assistance of counsel was alleged. Following a hearing on the State’s motion to dismiss,
the post-conviction court dismissed the Appellant’s petition finding that it was time-barred.

                                                    ANALYSIS

         The sole issue in this case is whether the Appellant filed his petition for post-conviction relief
within the one-year statute of limitations period. The right to file a petition is extinguished upon
expiration of the limitations period, thus depriving the post-conviction court of jurisdiction to
consider the petition’s merits.2 Tenn. Code Ann. § 40-30-102(a), (b) (2003). It is conceded that the
judgment of conviction became final on May 2, 2002, and that the petition was stamped filed by the
trial court clerk’s office on May 9, 2002. Thus, the dispositive question is the date the Appellant
delivered his petition to the prison authorities. Pro se petitions by inmates, although not received
by the clerk’s office until after the time fixed for filing, nonetheless, “shall be deemed timely if the
papers were delivered to the appropriate individual at the correctional facility within the time fixed
for filing.” Tenn. Sup. Ct. R. 28, § 2(G); Tenn. R. Crim. P. 49(c). In effect, “the jailer is . . . the
clerk of the [court].” Paul v. State, 75 S.W.3d 926, 929 (Tenn. Crim. App. 2001) (citing Houston
v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 2382 (1988)).

         At the hearing on the motion to dismiss, the Appellant, although provided the opportunity
to do so, presented no proof as to the date he delivered his petition to prison authorities. As
previously noted, the petition is neither dated nor sworn to. The post-conviction court dismissed the
petition concluding that the Appellant failed to establish by clear and convincing evidence that the
petition was timely filed. On appeal, the Appellant contends that this ruling is erroneous because
“[i]t is plausible that it could have taken seven (7) days for the pro se petition to have found its way
from prison authorities to the desk of the Knox County Criminal Court Clerk.” We find this
argument unpersuasive. The question of whether the Appellant mailed his petition prior to the
expiration of the statute of limitations is one of fact to be determined by the post-conviction court.
State v. Vickers, 970 S.W.2d 444-48 (Tenn. 1998). The facts in this case do not preponderate against
the post-conviction court’s findings that the Appellant has failed to carry his burden of establishing
that the petition was timely filed.




         1
           (...continued)
the one (1) year statute of limitations should not bar your claim. As of now I have a sentcoced (sic) reduction and would
like to change to post conviction filed.”

         2
          The Post-Conviction Procedure Act of 1995 provides three exceptions for filing outside the one-year
limitations period. Tenn. Code Ann. § 40-30-102(a) (2003). None of these exceptions are asserted in this case.

                                                          -2-
                                      CONCLUSION

       Based upon the foregoing, we affirm the Knox County Criminal Court’s dismissal of the
Appellant’s petition for post-conviction relief.




                                                  ___________________________________
                                                  DAVID G. HAYES, JUDGE




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