Lovell Lightner v. State ( 1999 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
LOVELL LIGHTNER, * April 12, 1999
Appellant, * Cecil Crowson, Jr.
C.C.A. # 03C01-9808-CR-00277
Appellate C ourt Clerk
VS. * HAMILTON COUNTY
STATE OF TENNESSEE, *
Appellee. *
OPINION
The petitioner, Lovell Lightner, appeals the dismissal of his petition for
post-conviction relief. The following issues have been presented for our review:
(I) whether the petition is barred by the statute of
limitations;
(II) whether the petitioner's guilty plea was knowing and
voluntary; and
(III) whether the petitioner received the effective
assistance of counsel.
Because the petition is barred by the statute of limitations, this court affirms the
dismissal pursuant to Rule 20, Tenn. Ct. Crim. App.
In 1991, the petitioner was convicted of attempted first degree murder.
The trial court imposed a fifteen-year sentence. No appeal was taken. On February
6, 1997, the petitioner filed this petition for post-conviction relief, alleging that his
guilty plea was neither knowingly nor voluntarily entered and that his counsel was
ineffective. Appointed counsel filed an amended petition. After an evidentiary
hearing, the trial court dismissed the petition, concluding that it was barred by the
statute of limitations. While acknowledging that the petition is untimely, the
petitioner asserts that the application of the statute of limitations would abridge his
right to due process. See Sands v. State, 903 S.W.2d 297 (Tenn. 1995); Burford v.
State, 845 S.W.2d 204, 208 (Tenn. 1992).
Under the Post-Conviction Procedure Act of 1995, a petition must be
filed "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." Tenn. Code Ann. § 40-30-202(a). The statute provides that the limitations
period "shall not be tolled for any reason, including any tolling or saving provision
otherwise available at law or equity." Id. Thus, this petition, filed six years after
entry of the judgment of conviction is barred by the statute of limitations. Id.
The only exceptions are if the claim is based upon a new rule of
constitutional law applicable to the petitioner's case, the claim is based upon new
scientific evidence showing innocence, or the claim is based upon an enhanced
sentence that was enhanced because of convictions that have subsequently been
found to be illegal. Tenn. Code Ann. § 40-30-202(b).
Neither ineffective assistance of counsel nor the entry of an invalid
guilty plea qualify as new constitutional grounds for relief. See Strickland v.
Washington, 466 U.S. 668 (1984); Boykin v. Alabama, 395 U.S. 238 (1969). Thus,
the allegations in the petition do not satisfy any exception to the statute of
limitations. Moreover, we do not find that application of the statute of limitations in
this instance runs afoul of due process principles. In Burford v. State, 845 S.W.2d
204, 208 (Tenn. 1992), our supreme court held that in certain situations application
of the statute of limitations in a post-conviction proceeding might violate
constitutional due process. In determining whether there has been such a violation,
the essential question is whether the time period allowed by law provides petitioner
a fair and reasonable opportunity to file suit. Id. In Burford, the petitioner could not
have filed within the three-year limitation absent a determination on his prior
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post-conviction petition. Our supreme court ruled that Burford was "caught in a
procedural trap and unable to initiate litigation ... despite the approach of the
three-year limitation." Id. There was no such trap here.
In Sands v. State, 903 S.W.2d 297 (Tenn. 1995), our supreme court
further defined how to apply the Burford test. Courts are required to
(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. In making this final determination, courts
should carefully weigh 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 at 301 (citations omitted) (quoting Burford, 845 S.W.2d at 207,
208).
The petitioner contends his ground for relief arose after the limitations
period:
The appellant discovered in the post-conviction hearing
that his attorney had not reviewed all the discovery
material available to him by the state, nor had his
attorney waited for the mental evaluation report before
advising appellant to enter a plea agreement.
In this case, the limitations period would have begun when the judgment of
conviction was entered in 1991. In our view, the petitioner's assertions, even if true,
would not qualify as "later-arising." A prompt investigation would have revealed the
deficiencies in counsel's performance. This is not a situation where the state has
suppressed or hidden evidence. The petitioner has offered no explanation for why
he was so tardy in discovering the deficiencies in counsel's performance. Our court
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has "refused to engraft a discovery rule over the statute of limitations in
post-conviction cases." Passarella v. State, 891 S.W.2d 619, 625 (Tenn. Crim. App.
1994). That the petitioner inadvertently stumbled upon deficiencies in counsel's
performance during the evidentiary hearing will not qualify as an exception to the
statute of limitations. Id.
Having concluded the petition is clearly barred by the statute of
limitations, we need not address the other issues. Accordingly, the judgment of the
trial court is affirmed. Costs shall be taxed to the state.
_________________________________
Gary R. Wade, Presiding Judge
CONCUR:
________________________________
James Curwood W itt, Jr., Judge
__________________________________
Norma McGee Ogle, Judge
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