Barger v. State ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
FEBRUARY SESS ION, 1998 March 24, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
DAVID ALBERT BARGER, ) C.C.A. NO. 03C01-9705-CR-00192
)
Appe llant, )
) GREENE COUNTY
V. )
)
) HON. JAMES E. BECKNER, JUDGE
STATE OF TENNESSEE, )
)
Appellee. ) (POST-C ONVIC TION)
FOR THE APPELLANT: FOR THE APPELLEE:
DAVID ALBE RT B ARGE R, pro se JOHN KNOX WALKUP
#1185 79, N.E .C.C. Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683-5000 MICH AEL J. F AHEY , II
Assistant Attorney General
2nd Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN 37243
C. BERKELEY BELL, JR.
District Attorn ey Ge neral
109 M ain Stree t
Greeneville, TN 37743
OPINION FILED ________________________
AFFIRMED
THOMAS T. WOODALL, JUDGE
OPINION
Petitioner, David Barger, appeals the denial of his petition for post-conviction
relief. Petitioner pled guilty to the offen ses of arme d robbery on September 18,
1987, and no direct appeal from that plea was made. On January 15, 1997,
Petitioner filed a p etition for post-conviction relief on th e grounds of ineffective
assistance of counsel resu lting in an involuntary guilty plea. T he trial court
dismissed the petition without a hearing because it was filed outside the statute of
limitations. Petition er app eals on the basis that the late-filed petition is an exception
under Burford v. State, 845 S.W.2d 204 (Tenn. 1992). We affirm the judgment of the
trial court.
“In post-conviction relief proceedings the petitioner has the burden of proving
the allegations in his petition by a preponde rance of the evide nce.” McBe e v. State ,
655 S.W.2d 191, 195 (Tenn. Crim. App. 1983). Furthermore, the factual findings of
the trial court in hearings “are conclusive on appeal unless the evidence
preponderates against the judg ment.” State v. Buford , 666 S.W.2d 473, 475 (Tenn.
Crim. A pp. 198 3).
As the date of Petitioner’s guilty plea was September 18, 1987, the former
Post-Conviction Procedure Act app lies to his petition fo r post-co nviction relief. See
Tenn. Code Ann. § 40-30-101 (repealed 1995). Under the provisions of Tennessee
Code Anno tated s ection 40-30 -102, p ost-co nviction relief m ust be applie d for with in
three (3) years of the date final action of th e highe st state ap pellate co urt to which
an ap peal is taken or within three (3) years o f a guilty plea if no appeal is taken, or
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consideration of such petition shall be barred. See Wa rren v. State , 833 S.W.2d 101(Tenn. Crim. App. 1992). Petitioner’s post-conviction claims expired on September
18, 1990.
Petitioner asserts that his claim is an exc eption unde r Burford. Under Burford,
our supre me c ourt he ld that a late-filed petition for post-conviction relief may be
allowed if the statute of limitations violates due process as applied to that petitioner
when the go vernm ent’s in terest in administrative efficiency and economy does not
outweigh the petitioner’s interest and there is nothing stale or fraudulent regarding
petition er’s claim. Burford, 845 S.W.2d 209-210. The trial court’s findings regarding
the facts of the guilty plea hearing are conclusive, and Petitioner has failed to allege
any interes ts whic h wou ld allow the exc eption to the s tatute o f limitations under
Burford.
Furthermore, there is no evidence in the record of any exception under
Tennessee Code Annotated section 40-30-202(b)(1997 Repl.). Petitioner has failed
to present any p roof which prep onderates against the trial court’s finding that the
statute of limitations bars Petitioner’s petition for post-conviction relief. This issue
is without m erit.
We affirm the ju dgme nt of the trial co urt.
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____________________________________
THOMAS T. W OODALL, Judge
CONCUR:
___________________________________
JERRY L. SMITH, Judge
___________________________________
WILLIAM B. ACREE, JR., Special Judge
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