                                                 FILED
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                            AT KNOXVILLE
                                                 December 11, 1998
                        NOVEMBER 1998 SESSION
                                                 Cecil Crowson, Jr.
                                                 Appellate C ourt Clerk

JOHN HERBERT TALLEY,              )
                                  )
           Appellant,             )    C.C.A. No. 03C01-9709-CR-00380
                                  )
vs.                               )    Hamilton County
                                  )
STATE OF TENNESSEE,               )    Hon. Rebecca J. Stern, Judge
                                  )
           Appellee.              )    (Post-Conviction)




FOR THE APPELLANT:                     FOR THE APPELLEE:

JOHN HERBERT TALLEY                    JOHN KNOX WALKUP
Pro Se                                 Attorney General & Reporter
U.S.P. Leavenworth
P.O. Box 1000                          TODD R. KELLEY
Leavenworth, KS 66048                  Assistant Attorney General
                                       425 Fifth Ave. N., 2d Floor
                                       Nashville, TN 37243-0493

                                       WILLIAM H. COX, III
                                       District Attorney General
                                       600 Market St., Ste. 310
                                       Chattanooga, TN 37402




OPINION FILED:________________

AFFIRMED

JAMES CURWOOD WITT, JR., JUDGE
                                       OPINION

              The appellant, John Herbert Talley, appeals the Hamilton County

Criminal Court's denial of his petition for post-conviction relief. Talley is presently

serving a life sentence in federal prison for convictions he received in 1995. His

federal sentence was enhanced based in part upon a state conviction he received

in 1985.1 In 1997, Talley filed a post-conviction petition alleging his guilty plea was

not knowing and voluntary and was the result of ineffective assistance of trial

counsel. He specifically pleaded that the statute of limitations should not be applied

to him under the authority of Burford v. State, 845 S.W.2d 204 (Tenn. 1995), and

Sands v. State, 903 S.W.2d 297 (Tenn. 1995). The court below dismissed the

petition, finding it was barred by the one-year statute of limitations. In this appeal,

Talley alleges the trial court erred (1) in finding his petition barred by the statute of

limitations and (2) by failing to make specific findings of fact in its order dismissing

the petition. Following a review of the record and the briefs of the parties, we affirm

the judgment of the trial court.



                                            I

              Talley essentially concedes that his post-conviction action was filed

many years past the expiration of the statute of limitations. See Tenn. Code Ann.

§ 40-30-102 (1990) (repealed 1995) (three year statute of limitations for actions filed

after July 1, 1986); Tenn. Code Ann. § 40-30-202(a) (1997) (one year statute of

limitations for actions filed after May 10, 1995); see also Carter v. State, 952 S.W.2d

417 (Tenn. 1997) (petitioners for whom three-year statute of limitations expired prior



       1
        In his petition, Talley challenges only his conviction of felonious
possession of marijuana as charged in Hamilton County indictment 157625. In
his appellate brief, he also relates his challenge to his convictions for sale of
cocaine as charged in Hamilton County indictments 159257, 159258, 164952,
164593 and 164955. He alleges he has filed other post-conviction actions
attacking these convictions. We consider only the challenge based upon
indictment 157625.

                                           2
to enactment of one year statute of limitations do not have right to bring post-

conviction claim within one year of enactment). He claims, however, that his claim

should not be time-barred under the authority of Burford and Sands.



              Under the current post-conviction statute, consideration of a petition

not filed within the statute of limitations is proper only if the claim (1) is based upon

a newly established constitutional right not recognized at the time of trial, (2) is

based upon new scientific evidence establishing actual innocence of the petitioner,

or (3) the claim is based upon the enhancement of sentence not resulting from a

guilty plea with an agreed sentence where the enhancing sentence subsequently

has been held to be invalid. Tenn. Code Ann. § 40-30-202(b) (1997).



              As the court below correctly found, the petitioner's claims do not fit into

any of the statutory categories for untimely consideration. Instead, his allegations

pertain to ineffective assistance of counsel and an unknowing and involuntary guilty

plea.



              Furthermore, we are unpersuaded that Talley's claims are controlled

by Burford or Sands. Those cases arose under the previous version of the Post-

Conviction Procedure Act, which provided that post-conviction petitions had to be

filed within (a) three years of the date of the final action of the highest state

appellate court to which an appeal was taken, or (b) three years from July 1, 1986,

the effective date of the statute. See Tenn. Code Ann. § 40-30-102 (1990)

(repealed 1995); State v. Mullins, 767 S.W.2d 668, 669 (Tenn. Crim. App. 1988).

An exception applied, however, to preserve the right of a post-conviction petitioner

to mount an otherwise untimely challenge where strict application of the statute of

limitations would deprive the petitioner of due process of law. Burford, 845 S.W.2d

at 209-10.

                                           3
                 Burford was a unique case in which the petitioner was caught in a

procedural trap in which he first had to challenge successfully his 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. Burford, 845 S.W.2d at 208.

He was caught in a quandary because the bar of the statute of limitations applicable

to the latter claim was looming prior to a determination of the former claim. Burford,

845 S.W.2d at 208. The supreme court found the application of the statute of

limitations to the latter claim violated due process in that limited circumstance and

allowed the Burford petitioner to maintain his claim notwithstanding the statute of

limitations. See Burford, 845 S.W.2d at 209-10. Burford did not, however, give

post-conviction petitioners the right to wage collateral attack on stale convictions

themselves outside the statute of limitations. Unlike Talley, the petitioner in Burford

filed his attack on his enhancing convictions within the time then allowed under the

Act. See generally Burford, 845 S.W.2d 204. Contrary to Burford, Talley seeks to

challenge not his enhanced federal sentence, over which this court has no

jurisdiction, but his enhancing Tennessee convictions. In this situation, the Burford

exception is inapplicable.



                 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. The Sands petitioner initiated his post-conviction claim

in 1990,2 well outside the three year statute of limitations. See Sands, 903 S.W.2d

at 298. 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



       2
           The Sands petitioner had filed two earlier post-conviction actions.

                                            4
normally have begun to run." Sands, 903 S.W.2d at 301. The Sands court

established a three-step analysis for applying the Burford rule to specific factual

situations. Under this test, the court should:

       (1)    determine when the limitations period would 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 . . . carefully weigh[ing] the petitioner's liberty
              interest in "collaterally attacking constitutional violations
              occurring during the conviction process" against the State's
              interest in preventing the litigation of "stale and fraudulent
              claims."

Sands, 903 S.W.2d 301 (quoting Burford, 845 S.W.2d at 207-08).



              In the case at bar, there is no allegation which would qualify as a "later

arising" claim. Accordingly, the trial court properly dismissed the petition. See

Tenn. Code Ann. § 40-30-206(f) (1997) ("If the facts alleged, taken as true, fail to

show that the petitioner is entitled to relief . . . the petition shall be dismissed.")



              Talley is not entitled to relief from the statute of limitations.



                                            II

               Talley also claims the trial court erred by failing to make factual

findings under the three-step Sands analysis.



              Because the petitioner failed to allege facts under which Burford and

Sands might apply to his case, the trial court did not err by not making the findings.

Furthermore, the trial court entered a well-reasoned and thoughtful order which

complies with the requirement that orders dismissing post-conviction actions shall


                                            5
contain specific findings of fact and conclusions of law. See R. Sup. Ct. 28, §

6(B)(4)(c).



              Finding no error in the trial court's dismissal of Talley's petition, we

affirm its judgment.



                                          ________________________________
                                          JAMES CURWOOD WITT, JR., JUDGE

CONCUR:




_______________________________
DAVID H. WELLES, JUDGE




_______________________________
L.T. LAFFERTY, SPECIAL JUDGE




                                          6
