Morris v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1997 SESSION
FILED
May 1, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
PAUL R. MORRIS, ) C.C.A. No. 03C01-9603-CC-00121
) GREENE COUNTY
Appellant, )
) Hon. James E. Beckner, Judge
VS. )
) (POST-CONVICTION)
STATE OF TENNESSEE ) No. 96CR047 BELOW
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID B. HILL JOHN KNOX WALKUP
301 E. Broadway Attorney General and Reporter
Newport, TN 37821
JANIS L. TURNER
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
C. BERKELEY BELL, JR.
District Attorney General
109 S. Main Street
Suite 501
Greeneville, TN 37743
OPINION FILED:__________________
AFFIRMED
CORNELIA A. CLARK,
Special Judge
OPINION
In January 1967, appellant pled guilty in Greene County to the offenses of
burglary and grand larceny. He was sentenced to three years on each count. The
sentences were ordered to run concurrently to one another. No appeal was taken.
On June 12, 1990, in the United States District Court for the Eastern District of
Tennessee, the appellant was convicted by a jury of (1) using a federal
communications device in the attempt to possess and distribute a Schedule II
controlled substance (cocaine hydrochloride) in violation of Title 21, U.S.C. §846;
(2) possession of a Schedule II controlled substance (cocaine hydrochloride) in
violation of Title 21, U.S.C. §§841(a)(1), 841(b)(1)(B), and 846; and (3) possession
of a firearm after having been convicted of a felony offense punishable by a term
of one or more years imprisonment in violation of Title 18, U.S.C. §922(b)(1). The
petitioner was sentenced to an effective sentence of one hundred eighty (180)
months for the various federal offenses. The sentences were enhanced because
of the 1967 Greene County convictions.
On January 25, 1996, appellant filed a petition for post-conviction relief
alleging ineffective assistance of counsel at time his pleas were entered, in that he
was not advised of his right against self-incrimination and his right to confront and
cross-examine his accusers. On February 8, 1996, the trial court dismissed the
petition based on the expiration of the statute of limitations. We affirm the judgment
of the trial court.
Prior to the enactment of the 1995 Post-Conviction Procedure Act, such
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 last statute. T.C.A. §40-30-102 (repealed by
1995 Tenn. Pub. Act 207, Section 1); State v. Mullins, 767 S.W.2d 668, 669 (Tenn.
Crim. App. 1988). Accordingly, petitioner’s three year statute of limitations for
matters pertaining to his 1967 convictions expired on July 1, 1989.
2
The 1995 Post-Conviction Procedure Act, T.C.A. §40-30-201 et. seq. (Supp.
1996) applies to all post-conviction petitions filed after May 10, 1995. See 1995
Tenn. Pub. Act 207, Section 3. The new legislation provides, in pertinent part, that
“. . . notwithstanding any other provision of this part to the contrary, any person
having ground for relief recognized under this part shall have at least one (1) year
from May 10, 1995, to file a petition or a motion to reopen a petition under this part”.
Compiler’s Notes to T.C.A. §40-30-201 (Supp. 1996). At issue is whether this new
legislation revives a petitioner’s right to seek relief when the prior statute of
limitations expired before the effective date of the new legislation.
In Arnold Carter v. State, No. 03C01-9509-CC-00270 (Tenn. Crim. App.,
Knoxville, July 11, 1996) this court held that the new act did provide such a new one
year window in which any petitioner could seek post-conviction relief even if that
petition had previously been barred by the statute of limitations. Judge David
Welles filed a strong dissenting opinion. The reasoning of that dissent ultimately
has been adopted in every decision since written. See e.g. Johnny Tillman v. State,
No. 03C01-9512-CR-00413 (Tenn. Crim. App., Knoxville, February 12, 1997; Doyle
Carter v. State, No. 01C01-9511-CC-00398 (Tenn. Crim. App., Nashville, February
12, 1997); William Edward Blake v. State, No. 03C01-9603-CR-00110 (Tenn. Crim.
App., Knoxville, February 12, 1997); Eric C. Pendleton v. State, No. 01-C-01-9604-
CR-00158 (Tenn. Crim. App., Nashville, February 12, 1997); Johnny Butler v. State,
No. 02C01-9509-CR-00289 (Tenn. Crim. App., Jackson, December 2, 1996). The
new act was not meant to revive previously barred claims.
This appellant has not asserted any grounds for re-opening his petition under
T.C.A. §40-30-202(b). Thus, the three-year statute of limitations for petitioner’s
claims expired July 1, 1989. This claim is now barred.
The appellant also argues that his claim of ineffective assistance of counsel
3
falls within the Burford exception to the statute of limitations. 1 He claims that the
constitutional right to be informed of the enhancement possibilities of a guilty plea
was created or became recognized after the statute of limitations for post-conviction
relief had expired. Therefore, he contends that his situation is analogous to Burford
and should allow him to file an untimely petition. We disagree.
Only violations of the United States or the Tennessee Constitution can form
the basis for relief in post-conviction cases. Housler v. State, 749 S.W.2d 758, 761
(Tenn. Crim. App. 1988). Those rights enumerated in Mackey v. State, 553 S.W.2d
337 (Tenn. 1977),2 including the right to be informed of the enhancement
possibilities of one’s plea, are not constitutional in nature. E.g., State v. Neal, 810
S.W.2d 131, 138 (Tenn. 1991); State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).
Therefore, they are inappropriate for post-conviction relief. Housler, 749 S.W.2d at
761; State v. Newsome, 778 S.W.2d 34, 38 (Tenn. 1989). This issue is without
merit.
We affirm the judgment of the trial court dismissing this petition.
__________________________________
CORNELIA A. CLARK
SPECIAL JUDGE
CONCUR:
1
In Burford v. State, 845 S.W.2d 204 (Tenn. 1992), the Tennessee Supreme
Court created an exception to the three year statute of limitations for post-conviction
relief. Those petitions based on constitutional grounds not recognized or not
available to petitioners prior to the running of their limitations period are not barred
from being filed.
2
In Mackey, the Tennessee Supreme Court expanded upon the directives
provided in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274(1969). In addition to the Boykin litany, the trial judge must apprise defendants of
the future enhancement possibilities of their guilty pleas.
4
__________________________________
JOHN H. PEAY
JUDGE
__________________________________
PAUL G. SUMMERS
JUDGE
5
IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE
PAUL R. MORRIS, ) C.C.A. No. 03C01-9603-CC-00121
) GREENE COUNTY
Appellant, )
) Hon. James E. Beckner, Judge
VS. )
) (POST-CONVICTION)
STATE OF TENNESSEE ) No. 96CR047 BELOW
)
Appellee. )
JUDGMENT
Came the appellant, Paul R. Morris, by counsel and also came the attorney
general on behalf of the state, and this case was heard on the record on appeal
from the Criminal Court of Greene County; and upon consideration thereof, this
court is of the opinion that there is no reversible error in the judgment of the trial
court.
Our opinion is hereby incorporated in this judgment as if set out verbatim.
It is, therefore, ordered and adjudged by this court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Criminal Court of Greene
County for execution of the judgment of that court and for collection of costs
accrued below.
The appellant appears to be indigent. Costs of this appeal will be paid by the
State of Tennessee.
PER CURIAM
John H. Peay, Judge
Paul G. Summers, Judge
Cornelia A. Clark, Special Judge