State v. Cain ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
JULY SESSION, 1997 October 8, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9609-CR-00347
)
Appellee, )
) HAMILTON COUNTY
)
V. )
) HON. STEPHEN M. BEVIL, JUDGE
GEORGE WILLIAM CAIN, )
)
Appe llant. ) (POST CONVICTION)
FOR THE APPELLANT: FOR THE APPELLEE:
ARDENA J. GARTH JOHN KNOX WALKUP
District Public Defender Attorney General & Reporter
DONNA ROBINSON MILLER MARVIN E. CLEMENTS, JR.
Assistant Public Defender Assistant Attorney General
2nd Floor, Cordell Hull Building
KARLA GOTHARD 425 Fifth Avenue North
Assistant Public Defender Nashville, TN 37243-0943
701 Cherry Suite - Suite 300
Chattanooga, TN 37402 WILL IAM H. C OX, III
District Attorney General
BATES W. BRYAN, JR.
Assistant District Attorney General
Chattanoo ga-Ham ilton County
Courts Building
Chattanooga, TN 37402
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
The Petitioner, George William Cain, appeals the order of the
Hamilton Coun ty Crim inal Co urt dism issing his petition for post-co nviction relief.
The trial cou rt found that the relief requested was barred by the statute of
limitations and dism issed the petition witho ut an evid entiary he aring. On appe al,
the Petitioner argues that Tennessee Code Annotated section 40-30-201 et seq.
(Supp. 1996), provides for a “one year wind ow of op portunity” to file for post-
conviction relief through May 10, 1996. In the alternative, Petitioner argues that
application of the sta tute of lim itations to his petition would violate constitutional
due process guarantees. Finding no merit to the Petitioner’s arguments, we
affirm the ju dgme nt of the trial co urt.
On May 30, 1995, Petitioner filed his pro se petition for post-
conviction relief in the Criminal Court of Hamilton County. In this petition, he
attacked five (5) fe lony co nviction s he re ceived in Hamilton County Crimina l Court
on November 28, 1975, in addition to a co nviction for sec ond d egree murd er in
the Ham ilton Cou nty Crim inal Cou rt on Nov embe r 30, 198 4. The firs t five (5)
convictions were the result of guilty pleas, and the second degree murder
conviction wast he result of a jury trial. The trial court’s order of dismissal states
that this court affirmed the conviction for second degree murder in an opinion
filed on December 2, 1985, and that our supreme court denied the Petition er’s
application for permission to appeal on March 25, 1986. The Petition alleges
various ground s for relief, but in his appeal Petitioner argues that the guilty plea
hearings in 1975 were done in a m anne r in whic h he w as no t advise d of his
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constitutional rights in violatio n of Roun saville v. Eva tt, 733 S.W.2d 506 (Tenn.
1987) and Boykin v. Alabama, 395 U.S . 238 (19 69).
Petitioner argues that the decision of our supreme court in Burford
v. State, 845 S.W.2d 204 (Tenn. 1992), mandates that application of the statute
of limitations in his case would vio late his right to due pro cess.
W e initially note that in Arnold Carter v. State, _____ S.W.2d _____,
No. 03-S -01-9 612-C R-00 117, s lip op. at 2, Monroe County (Tenn., at Knoxville,
Sept. 8, 1997), o ur supreme court ruled as follows: “[p]etitioners for whom the
statute of limitations expired prior to the effective date of the new Act, i.e., May
10, 1995, do not h ave an a dditional ye ar in which to file petitions fo r post-
conviction relief.” Therefore, there is no merit to Petitioner’s argument that the
Post-Conviction Procedure Act, which was effective on May 10, 1995, grants a
“one year window of opportunity” to file a petition for post-co nviction relief
regarding claims which had previously been barred by the statute of limitations.
Petitioner had u ntil July 1 , 1989 in whic h to file a petition for post-conviction relief
attacking the 1975 convictions and the conviction for second degree m urder.
Tenn. C ode Ann . § 40-30-102 (repealed 19 95).
Neither Boyk in, a decision by the United States Suprem e Court filed
in 1969, nor Rou nsaville , a decision of our supreme court in 1987, stated grounds
for relief which arose after the statute of limitations had expired on any of
Petitione r’s conviction s. There fore, Burford is not app licable.
We affirm the ju dgme nt of the trial co urt.
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____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
DAVID H. WELLES , Judge
___________________________________
JOHN K. BYERS, Senior Judge
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