State v. Robert Jefferson ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
MAY 1997 SESSION
ROBERT D. JEFFERSON, * C.C.A. # 02C01-9608-CR-00257
Appellant, * SHELBY COUNTY
VS. * Hon. John P. Colton, Jr., Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
FILED
July 8, 1997
For Appellant: For Appellee: Cecil Crowson, Jr.
Appellate C ourt Clerk
Robert D. Jefferson Charles W. Burson
Pro Se Attorney General & Reporter
No. 13936-076
Federal Correctional Institute William David Bridgers
P.O. Box 34550 Assistant Attorney General
Memphis, TN 38134-0550 450 James Robertson Parkway
Nashville, TN 37243-0493
Lee V. Coffee
Asst. District Attorney General
Criminal Justice Center
201 Poplar Avenue, Suite 301
Memphis, TN 38103
OPINION FILED:_____________________
AFFIRMED
PER CURIAM
OPINION
The petitioner, Robert D. Jefferson, appeals the trial court's denial of
his petition for post-conviction relief. The issue presented for review is whether the
trial court correctly dismissed the petition without an evidentiary hearing on the basis
that it was barred by the statute of limitations. We affirm the judgment of the trial
court.
This post-conviction petition, filed March 5, 1996, challenges the
validity of seven separate convictions occurring between 1985 and 1990. The
petitioner contends these sentences are being used to enhance an otherwise
unrelated sentence imposed by federal court. He alleges that his guilty pleas were
not knowingly and voluntarily made. The trial court summarily dismissed the petition
as being time-barred.
In this appeal of right, the petitioner makes several arguments as to
why his petition should not be barred by the statute of limitations. First, he argues
the statute of limitations does not apply because he is in custody of the federal
rather than state government. Our court, however, has previously held there is no
distinction under the post-conviction act between a prisoner in federal custody and
one in state custody. Passarella v. State, 891 S.W.2d 619, 622-23 (Tenn. Crim.
App. 1994). Also, this court has upheld application of the statute of limitations
against a federal prisoner. See William Lynn Johnson v. State, No. 02C01-9605-
CR-00136, slip op. at 8 (Tenn. Crim. App., at Jackson, June 10, 1997). We are
bound by those rulings.
The petitioner also contends that the application of the statute of
2
limitations violates the ex post facto provisions of both the state and federal
constitutions. This court, however, has previously rejected this same argument.
See State v. Richard S. Butler, No. 1338, slip op. at 3 (Tenn. Crim. App., at
Knoxville, May 19, 1992). See also William Lynn Johnson, slip op. at 5.
Next, the petitioner argues that the new Post-Conviction Procedure Act
creates a one-year window in which any petitioner may file regardless of the time of
the conviction. Effective May 10, 1995, the new Post-Conviction Procedure Act
replaced the prior act in its entirety. See 1995 Tenn. Pub. Act 207, §§ 1 and 3.
Because this petition was filed in March of 1996, the new act applies. The most
recent legislation replaced a three-year with a one-year limitation:
(a) ...[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. The
statute of limitations shall not be tolled for any reason....
(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 [S]upreme [C]ourt establishing a constitutional
right that was not recognized as existing at the time of
trial;
(2) The claim in the petition is based upon new
scientific evidence establishing that such petitioner is
actually innocent of the offense or offenses for which the
petitioner was convicted; or
(3) The claim asserted in the petition seeks relief
from a sentence that was enhanced because of a
previous conviction and such conviction in the case in
which the claim is asserted was not a guilty plea with an
3
agreed sentence, and the previous conviction has
subsequently been held to be invalid, in which case the
petition must be filed within one (1) year of the finality of
the ruling holding the previous conviction to be invalid.
Tenn. Code Ann. § 40-30-202 (Supp. 1996).
Because the convictions in this case became final in years ranging
from 1985 to 1990, this petition appears to have been barred not only by the current
one-year statute of limitations but also the former three-year statute. Moreover, the
grounds raised in the petition and on appeal do not appear to fall within any of the
exceptions set out in Tenn. Code Ann. § 40-30-202(b)(1), (2), or (3) (Supp. 1996).
In Arnold Carter v. State, No. 03C01-9509-CC-00270 (Tenn. Crim.
App., at Knoxville, July 11, 1996), appeal granted, (Tenn., Dec. 2, 1996), a panel of
this court, by a two-to-one margin, ruled that the literal terms of the new statute
created a one-year window, starting on May 10, 1995, during which post-conviction
petitions may be filed, notwithstanding the date of the judgment:
This act shall take effect upon becoming a law, the public
welfare requiring it and shall govern all petitions for post-
conviction relief filed after this date, and any motions
which may be filed after this date to reopen petitions for
post-conviction relief which were concluded prior to the
effective date of this act. Notwithstanding any other
provision of this act to the contrary, any person having a
ground for relief recognized under this act shall have at
least one (1) year from the effective date of this act to file
a petition or a motion to reopen under this act.
1995 Tenn. Pub. Act 207, § 3 (emphasis added).
This majority found no ambiguities in the terminology of the statute
despite the reasonable argument by the dissent to the contrary. In Carter, our
supreme court granted the state's application for permission to appeal. While no
4
decision has yet been filed, other panels of this court have adopted the dissenting
view in Carter and have held that the new act did not create a new one-year filing
period. See, e.g., Ronald Albert Brummitt v. State, No. 03C01-9512-CC-00415
(Tenn. Crim. App., at Knoxville, Mar. 11, 1997); Jimmy Earl Lofton v. State, No.
02C01-9603-CR-00073 (Tenn. Crim. App., at Jackson, Mar. 7, 1997); Roy Barnett v.
State, No. 03C01-9512-CV-00394 (Tenn. Crim. App., at Knoxville, Feb. 20, 1997);
Stephen Koprowski v. State, No. 03C01-9511-CC-00365 (Tenn. Crim. App., at
Knoxville, Jan. 28, 1997); Johnny L. Butler v. State, No. 02C01-9509-CR-00289
(Tenn. Crim. App., at Jackson, Dec. 2, 1996). A majority of this panel now adheres
to the holding in these subsequent cases. Thus, treating the petition as one for
post-conviction relief, this claim is barred by the statute of limitations under the new
Act.
The petitioner next argues that the statute of limitations does not apply
to guilty proceedings unless an action is filed in the highest state appellate court.
Our court has routinely held that the statute of limitations on guilty pleas
commences "when the judgment of conviction [is] entered." Sharon Ann Conner v.
State, No. 03C01-9509-CC-00279, slip op. at 2 (Tenn. Crim. App., at Knoxville, June
3, 1996). See also William Lynn Johnson, slip op. at 9.
The petitioner also argues that he should be excused from complying
with the statute of limitations because federal prisons do not supply prisoners with
copies of Tenn. Code Ann. Our court has held "ignorance of the existence of the
statute of limitations ... does not toll the running of the statute of limitations." State
v. Phillips, 904 S.W.2d 123, 124 (Tenn. Crim. App. 1995). The petitioner also
asserts that the federal system's failure to supply copies of the Code amounts to
state action which has caused him not to present his claim sooner. He argues he is
5
entitled to the benefit of Tenn. Code Ann. § 40-30-206(g) (2) (Supp. 1996):
A ground for relief is waived if the petitioner personally or
through an attorney failed to present it for determination
in any proceeding before a court of competent
jurisdiction in which the ground could have been
presented unless: the failure to present the ground was
the result of state action in violation of the federal or state
constitution.
Initially, we note that the above-quoted portion creates a limited
exception to the waiver doctrine and has no effect on the application of the statute
of limitations. Moreover, our court has recently rejected this very argument. William
Lynn Johnson, slip op. at 6-7.
The petitioner also argues he is entitled to relief under the principles
announced in State v. Frazier, 784 S.W.2d 927 (Tenn. 1990); State v. Newsome,
778 S.W.2d 34 (Tenn. 1989); and State v. McClintock, 732 S.W.2d 268 (Tenn.
1987). Frazier held that Boykin was not to be applied retrospectively and that
Mackey violations that exceeded the mandates of Boykin are not subject to review
during a post-conviction proceeding. Frazier, 784 S.W.2d at 928. Newsome held
that the harmless error rule applies to Mackey violations. Newsome, 778 S.W.2d at
38. Accordingly, neither Frazier nor Newsome created a new constitutional right to
be applied retroactively. We also note that the plain language of the McClintock
opinion holds that it only applies to litigants already in the "pipeline." McClintock,
732 S.W.2d at 274. None of these cases afford the petitioner any relief.
The appellant also argues that the application of the statute of
limitations to his case denies him due process of law and that the post-conviction
court erred when it did not find an exception to the statute of limitations in his case.
In Burford v. State, 845 S.W.2d 204 (Tenn.1992), our supreme court carved out a
6
narrow exception to the then three-year statute of limitations. Burford had been
sentenced as a habitual criminal to a term of life imprisonment based upon five prior
robbery convictions. Id. at 205. He filed a timely post-conviction petition, alleging
that certain of his five prior robbery convictions were constitutionally infirm because
he had not been advised of his right against self-incrimination before entering his
plea; he was granted post-conviction relief from these convictions. Id. Later, after
the three-year statute of limitations had expired, Burford filed a petition to set aside
the finding of habitual criminality on the basis that there was no longer a sufficient
number of prior felony convictions to qualify him for the enhanced punishment. Id.
at 206. Our supreme court ruled that the statute of limitations, while generally
compliant with constitutional due process, violated Burford's specific due process
rights:
If consideration of the petition is barred, Burford will be
forced to serve a persistent offender sentence that was
enhanced by previous convictions that no longer stand.
As a result, Burford will be forced to serve an excessive
sentence in violation of his rights under the Eighth
Amendment to the U.S. Constitution, and Article I, § 16
of the Tennessee Constitution, which, by definition, are
fundamental rights entitled to heightened protection.
Id. at 209.
In Sands v. State, 903 S.W.2d 297 (Tenn.1995), our supreme court
further defined how to apply the Burford test. A court must:
(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."
7
Sands, 903 S.W.2d at 301 (citations omitted) (quoting Burford, 845 S.W.2d at 207,
208).
By the use of these guidelines, we have first determined that the
statute of limitations for this petitioner's convictions expired in the years between
19891 and 1993. The petitioner's argument fails at the second step. He argues his
pleas were involuntary. The right to the voluntariness of a guilty plea was
established well before petitioner's judgments were entered. See, e.g., Boykin v.
Alabama, 395 U.S. 238 (1969). Thus, he has not established that a new
constitutional right arose after his convictions became final or after his statute of
limitations expired. To the extent the petitioner argues his pleas are invalid because
he was not advised that the conviction could be used to enhance a subsequent
punishment, that portion of the advice litany is not constitutionally required. Our
supreme court has ruled that the "advice [that the conviction may be used to
enhance a future sentence] ... is not based upon any constitutional provision, federal
or state... [and] such omissions have no validity on the ... post-conviction
proceeding." State v. Prince, 781 S.W.2d 846, 853 (Tenn. 1989).
1
Th e thre e-year statu te of lim itations was pas sed in 198 6.
8
We therefore affirm the judgment of the trial court.
PER CURIAM
Joe B. Jones, Presiding Judge
Gary R. Wade, Judge
John H. Peay, Judge
9