Cyril v. Fraser ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
NOVEMBER SESSION, 1996
LARRY DARNELL LAKE, )
) No. 02C01-9512-CC-00378
Appellant )
) HARDEMAN COUNTY
vs. )
) Hon. Jon Kerry Blackwood, Judge
STATE OF TENNESSEE, )
Appellee
)
)
(Post-Conviction) FILED
Dec. 16, 1996
Cecil Crowson, Jr.
For the Appellant: For the Appellee: Appellate Court Clerk
Pro Se Charles W. Burson
Larry Darnell Lake #115184 Attorney General and Reporter
Cold Creek Correctional Facility
Henning, TN 38041-1000 Cyril V. Fraser
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
Elizabeth T. Rice
District Attorney General
Jerry Norwood
Asst. District Attorney General
302 Market Street
Somerville, TN
OPINION FILED:
AFFIRMED
David G. Hayes
Judge
OPINION
The appellant, Larry Darnell Lake, pled guilty, on May 9, 1988, to two
counts of armed robbery. Subsequently, the Hardeman County Circuit Court
sentenced the appellant to forty years imprisonment on each count to run
concurrently. No direct appeal was taken. On April 29, 1989, the appellant
timely filed a petition for post-conviction relief alleging ineffective assistance of
counsel. The trial court dismissed the petition. On January 18, 1995, the
appellant filed a second post-conviction petition alleging the ineffectiveness of
post-conviction counsel. This petition was dismissed as time-barred. The
appellant now appeals this dismissal.
We agree with the trial court's finding that the applicable three year statute
of limitations barred the appellant's petition. Tenn. Code Ann. § 40-30-102(1986 Supp.) (repealed). In addition to the expiration of the limitations period,
the appellant fails to allege a cognizable ground for post-conviction relief. Post-
conviction relief may only be granted when the conviction or sentence is void or
voidable because of an abridgement of a constitutional right. Overton v. State,
874 S.W.2d 6, 11 (Tenn. 1994) (citations omitted). The appellant's petition
alleges ineffectiveness of post-conviction counsel. There is no constitutional
right to the effective assistance of counsel in post-conviction proceedings. See
Pennsylvania v. Finley, 481 U.S. 551, 554-555, 107 S.Ct. 1990, 1993 (1987);
House v. State, 911 S.W.2d 705, 711 (Tenn. 1995), cert. denied, --U.S.--, 116
S.Ct. 1685 (1996). As such, the appellant's reliance upon Burford v. State, 845
S.W.2d 204 (Tenn. 1992), and Sands v. State, 903 S.W.2d 297 (Tenn. 1995), is
misplaced.1 We affirm the judgment of the trial court.
____________________________________
DAVID G. HAYES, Judge
1
These decisions set forth a three step process to determ ine whether the strict application
of the three year lim itations period violates one's due process rights.
2
CONCUR:
__________________________
GARY R. WADE, Judge
__________________________
WILLIAM M. BARKER, Judge
3