         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                 OLIVER J. HIGGINS v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Hardin County
                           No. 6205   Charles C. McGinley, Judge



                    No. W2008-02694-CCA-R3-PC - Filed April 20, 2009



        The Petitioner, Oliver J. Higgins, appeals the trial court’s denial of his petition for post-
conviction relief. The State has filed a motion requesting that this Court affirm the trial court’s
denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We conclude that the
State’s motion is meritorious. Accordingly, we grant the State’s motion and affirm the judgment of
the lower court.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

CAMILLE R. MCMULLEN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ALAN E. GLENN , JJ., joined.

Oliver J. Higgins, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Rachel West
Harmon, Assistant Attorney General, for the appellee, State of Tennessee.


                                  MEMORANDUM OPINION


        In 1984, the Petitioner, Oliver J. Higgins, was convicted of seven offenses involving the sale
of marijuana. He asserts that he received a sentence of eleven months, twenty-nine days on each
count; all to be served concurrently. No appeal was taken seeking review of his convictions or
sentences. On December 27, 2007, the Petitioner received a sentence of life imprisonment in the
federal system. His current federal sentence was based in part upon the Petitioner’s 1984 drug
convictions.



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        On October 16, 2008, the Petitioner filed, pro se, a petition for post-conviction relief in the
Hardin County Circuit Court collaterally challenging his 1984 convictions. As grounds for relief,
the Petitioner alleged that counsel was ineffective, that his conviction was based on the use of
evidence obtained pursuant to an unconstitutional search, that the State failed to disclose exculpatory
evidence, that he was actually innocent of the offenses, and that newly discovered evidence
established his innocence. The Petitioner further asserted that the statute of limitations should be
tolled due to the extraordinary circumstances and because of the United States Supreme Court’s
decision in Johnson v. United States, 544 U.S. 295, 125 S. Ct. 1571 (2003). By order entered
November 13, 2008, the trial court summarily dismissed the petition, finding that that the petition
was time-barred by the statute of limitations. A notice of appeal document was filed on November
26, 2008.

        The State has filed a motion requesting that this Court affirm the lower court's denial of relief
pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. As basis for its motion, the
State asserts that the statute of limitations for filing a petition for post-conviction relief has expired
and argues that due process considerations do not require tolling of the limitations period. The
Petitioner has filed a response to the State’s motion in which he contends that his case presents
extraordinary circumstances justifying equitable tolling.

         Between the date of the Petitioner’s convictions and the filing of the petition for post-
conviction relief, several statutes governing post-conviction relief have been enacted and amended.
At the time his convictions became final, there was no applicable statute of limitations for seeking
post-conviction relief. Accordingly, a petition could be filed “at any time after [a petitioner] ha[d]
exhausted his appellate remedies and before the sentence ha[d] expired or had been fully satisfied.”
T.C.A. § 40-30-102 (1982) (repealed 1986). In 1986, the Post-Conviction Act established a three-
year statute of limitations. T.C.A. § 40-30-102 (1990) (repealed 1995). Those whose convictions
were final before the effective date of the act had three years from July 1, 1986, to file a post-
conviction claim. See Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App.), perm. to appeal
denied, (Tenn. 1988). In 1995, our legislature amended the Post-Conviction Procedure Act such that
under our current law, a petitioner must seek post-conviction relief “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.” T.C.A. § 40-30-102(a)
(2003). The statute emphasizes that “[t]ime is of the essence of the right to file a petition for post-
conviction relief or motion to reopen established by this chapter, and the one-year limitations period
is an element of the right to file such an action and is a condition upon its exercise.” T.C.A.§ 40-30-
102(a).


        While due process dictates that the statute of limitations not be so strictly applied as to deny
a person the opportunity to have his claim heard and determined at a meaningful time and in a
meaningful manner, State v. McKnight, 51 S.W.3d 559 (Tenn. 2001); Seals v. State, 23 S.W.3d 272
(Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992), the exceptions to the statute of
limitations are explicitly limited, i.e., (1) claims based upon a new rule of constitutional law

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applicable to a petitioner's case, (2) claims based upon new scientific evidence showing innocence,
and (3) claims based upon enhanced sentences that were enhanced because of convictions
subsequently found to be illegal. See T.C.A. § 40-30-102(b)(1)-(3). The post-conviction court
must also consider an otherwise untimely petition if the application of the statute of limitations
would be a denial of due process. See Seals, 23 S.W.3d at 278-79. The principles of due process
are flexible, requiring a balancing of the Petitioner’s liberty interest against the State’s finality
interests. Sample v. State, 82 S.W.3d at 274.

        In determining whether due process should toll the statute of limitations, courts should utilize
a three-step process:

       (1) determine when the limitations period would have normally have begun to run;

       (2) determine whether the grounds for relief actually arose after the limitations period
       would normally have commenced; and

       (3) if the grounds are “later-arising,” determine if, under the facts of the case, a strict
       application of the limitations period would effectively deny the petitioner a
       reasonable opportunity to present the claim.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). In making this final determination, courts
should carefully weigh the Petitioner’s liberty interest in “collaterally attacking constitutional
violations occurring during the conviction process,” Burford, 845 S.W.2d at 207, against the State’s
interest in preventing the litigation of “stale and fraudulent claims.” Sands, 903 S.W.2d at 301.
Again, the Petitioner claims that the statute of limitations is tolled by (1) the United States Supreme
Court’s decision in Johnson v. United States, 544 U.S. 295, 125 S. Ct. 1571 (2003); (2) newly
discovered evidence of law enforcement corruption that affected the Petitioner’s case; and (3) the
Petitioner’s actual innocence of the charges in this case.

        In Johnson v. United States, the Supreme Court, interpreting a one-year federal statute of
limitations, held that the vacatur of a prior state conviction used to enhance a federal sentence
constituted a new “fact,” which commenced the statute of limitations for collaterally attacking the
federal sentence. Johnson did not create a new constitutional rule of law applicable to the
Petitioner’s case. See 40-30-102(b)(1). The Petitioner’s reliance upon Johnson is misplaced.
Johnson attacked his federal sentence pursuant to 28 U.S.C. § 2255 on the ground that a state
conviction used to enhance the federal sentence. The Supreme Court decided the “distinct issue of
how soon a prisoner, successful in his state proceeding, must challenge the federal sentence under
§ 2255.” Id., at 304. The holding in Johnson was limited to challenging federal sentences and the
interpretation of section 2255. The holding in Johnson did not create a tolling provision for
challenging state convictions.

       The Petitioner further alleges that he is actually innocent of the offense and that newly
discovered evidence of law enforcement corruption entitles him to relief. In support of his argument


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that newly discovered evidence exists, the Petitioner maintains that he “has good reason to believe
that one or more of the Hardin County Sheriffs Dept. Agents involved in the 1984 narcotics case
have been removed from office due to corrupt and illegal conduct while performing their law
enforcement duties.” First, this information fails to qualify as new scientific evidence. See T.C.A.
§ 40-30-102(b)(2). Additionally, the Petitioner’s allegation in this regard remains just that an
allegation. He concedes that he “does not have any specific documented evidence to substantiate
these claims.”

        Finally, the Petitioner alleges that his actual innocence of the crimes for which he has been
convicted. The Petitioner’s claim of actual innocence derives from his assertion that his involvement
in the seven counts of the sale of marijuana was “essentially a sale of accommodation [for a friend]
and not any distribution for profit.” This argument fails to convince this Court that the Petitioner
is actually innocent of the offenses.

        In the present case, due process is not implicated. Due process requires that a petitioner be
provided the opportunity to pursue a claim; it does not require that the courts of this state permit
petitioners to use the claim of “due process” to excuse purposeful delay in the presentation of claims
nor does it permit petitioners to wrap themselves in a cloak of “due process”comprised of frivolous
guises to evade the expired statute of limitations. The Petitioner’s post-conviction petition filed
nearly nineteen years after the limitations expired is time-barred.

        When an opinion would have no precedential value, the Court of Criminal Appeals may
affirm the judgment or action of the trial court by memorandum opinion when the judgment is
rendered or the action taken in a proceeding without a jury and such judgment or action is not a
determination of guilt, and the evidence does not preponderate against the finding of the trial judge.
See Tenn. R. Ct. Crim. App. 20. We conclude that this case satisfies the criteria of Rule 20.
Accordingly, it is ordered that the State's motion is granted. The judgment of the trial court is
affirmed in accordance with Rule 20 , Rules of the Court of Criminal Appeals.




                                                       ___________________________________
                                                      CAMILLE R. MCMULLEN, JUDGE




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