Jackie F. Curry v. State of Tennessee ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 29, 2005
JACKIE F. CURRY v. STATE OF TENNESSEE
Appeal from the Criminal Court for Knox County
No. 80969 Ray L. Jenkins, Judge
No. E2005-00418-CCA-R3-PC - Filed December 7, 2005
The petitioner, Jackie F. Curry, appeals the Knox County Criminal Court’s summary dismissal of
his petition for post-conviction relief. He claims the trial court erred in finding his petition barred
by the Post-Conviction Procedure Act’s one-year statute of limitations. He asserts that Blakely v.
Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), announced a new rule of constitutional law
requiring retroactive application. We affirm the trial court’s summary dismissal of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JOSEPH M. TIPTON , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and
THOMAS T. WOODALL, J., joined.
Jackie F. Curry, Mountain City, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Leslie E. Price, Assistant Attorney General; and
Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.
OPINION
The petitioner was convicted in February 2000 of three counts of aggravated rape. The trial
court sentenced the petitioner to twenty-two years for each conviction to be served consecutively for
an effective total sentence of sixty-six years in the Department of Correction. The petitioner
appealed, and this court affirmed his conviction. See State v. Jackie F. Curry, No. E2000-02475-
CCA-R3-CD, Knox County (Tenn. Crim. App. Aug. 2, 2001), app. denied (Tenn. Nov. 5, 2001).
On January 11, 2005, the petitioner filed a petition for post-conviction relief contending that the trial
court improperly enhanced his sentence under Blakely. The trial court dismissed the petition as
barred by the statute of limitations, and the petitioner appealed.
On appeal, the petitioner contends that Blakely announced a new rule of constitutional law
requiring retroactive application. He cites Tennessee Code Annotated section 40-30-102(b)(1) for
the proposition that his petition is not barred by the statute of limitations. He claims that Blakely
requires that he be given a new sentencing hearing. The state contends that the trial court properly
dismissed the petition as time-barred based upon its assertion that Blakely does not require
retroactive application. We agree with the state.
The Post-Conviction Procedure Act provides:
(a) Except as provided in subsections (b) and (c), a person in custody
under a sentence of a court of this state must petition for post-
conviction relief under this part 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, or consideration of such petition
shall be barred. . . .
(b) No court shall have jurisdiction to consider a petition filed after
such time unless:
(1) The claim in the petition is based upon a final ruling of an
appellate court establishing a constitutional right that was not
recognized as existing at the time of trial, if retrospective application
of that right is required. Such petition must be filed within one (1)
year of the ruling of the highest state appellate court or the United
States supreme court establishing a constitutional right that was not
recognized as existing at the time of trial.
T.C.A. § 40-30-102(a), (b)(1). We note that our supreme court has recently held that Blakely did
not announce a new rule of constitutional law requiring retroactive application under the Post-
Conviction Procedure Act and that in any event, Tennessee’s sentencing scheme complies with the
Sixth Amendment as interpreted by the Supreme Court in Blakely and United States v. Booker, __
U.S. ___, 125 S. Ct. 738 (2005). State v. Gomez, 163 S.W.3d 632, 651 n.16, 661 (Tenn. 2005). We
conclude the trial court did not err in dismissing the petition. The petitioner is not entitled to relief.
___________________________________
JOSEPH M. TIPTON, JUDGE
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