Arthur Ray Lepley

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
ARTHUR RAY LEPLEY, ) October 5, 1999
) C.C.A. NO. 01C01-9903-CR-00084
Appellant, ) (Nos. 87-W-127 &Cecil Crowson, Jr.
87-W-128 Below )
) Appellate Court Clerk
DAVIDSON COUNTY
VS. )
) The Hon. Walter C. Kurtz
STATE OF TENNESSEE, )
) (Dismissal of Post-Conviction Petition)
Appellee. )
) AFFIRMED PURSUANT TO RULE 20
ORDER
This matter is before the Court upon the state’s motio n requesting that the
judgment in the above-s tyled cause be affirmed pursuant to Rule 20, Tennessee Court of
Criminal Appeals Rules. Having reviewed the state’s motion, the appellant’s brief, and the
record on appeal, we find that the motion is well taken.
It appears tha t in 1987, the petitioner pled guilty to three counts of armed robbery
and two counts of aggravated assault, and the trial court sentenced him to an effec tive
sentence of life plus ten years. The petitioner filed his first post-conviction petition on July 21,
1988, claiming, in part, that his right to due process was violated based on a failed bribery
attempt by the petitioner and his father. On direct appeal, this Court affirmed the trial court,
Lepley v. State, No. 89-249-III (Tenn. Crim. App., at Nashville, April 27, 1990), and the
Supreme Court denied permission to appeal on July 30, 1990. Subsequently, the appella nt
filed a second po st-conviction petition and then a motion to reopen post-conviction petition,
both of which were denied.
Finally, the petitioner filed the petition under review on November 18, 1998. He
submitted that he had newly discovered evidence in support of his claim regarding a failed
bribery attempt. Spec ifically, affidavits from his sister and brother-in-la w stating that th ey could
confirm that the petitioner’s father talked and met with the trial judge regarding the attempted
bribe. The trial court dismissed the petition, finding that it was barred by res judicata and the
statute of limitations and that the petitioner had failed to show good cause to reopen the matter.
We affirm .
Pursuant to T.C.A. § 40-30-202(a), a petitioner must petition for post-conviction
relief within one year of the date of the final action of the highest state appellate court to which
an appeal was taken. Under T.C.A. § 40-30-202(b), a court does not have jurisdiction to
consider a petition for post-conviction relief if it was filed outside the one-year statute of
limitations unless (1) the claim in the petition is based upon a final ruling of an appellate court
establishing a constitutional right that was not rec ognized as ex isting at the tim e of trial, if
retrospective application of that right is required; (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 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 agreed sentence, and the
previous conviction has subsequently been held to be invalid. Moreover, under T.C.A. § 40-30-
202(c), where a post-conviction petition has been filed and resolved on the merits by a court
of compete nt jurisdiction, any second or subs equent petition is to be dism issed summ arily.
In the present case, the petitioner’s filed his petition for post-conviction relief
outside the statute of limitations set forth in T.C.A. § 40-30-202(a), he does not submit that any
of his claims fall within one of the exceptions set forth in T.C.A. § 40-30-202(b), and the
petitioner filed a previous post-conviction petition which was reso lved on the merits by a court
of competent jurisdiction. T.C.A. § 40-30-202(c).
The statute clearly states that the one-year limitations period shall not be tolled for
any reason, including any tolling or saving provision otherwise available at law or equity. T.C.A.
§ 40-30-202(a). Moreover, application of the statute of limitations in this instance does not
violate 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 the petitioner a fair and reasonable opportunity to file suit. Id. In Burford, the
Supreme Court held that the petitioner was "caught in a procedural trap and unable to initiate
litigation ... despite the approach of the three-year limitation." Id. No such trap exists here.
IT IS, THEREFORE, ORDERED that the state’s motion to affirm the judgment
of the trial court under Rule 20, Tennessee Court of Criminal Appeals Rules, is granted, and
-2-
the judgment of the trial court is affirmed. It appearing that the petitioner is indigent, costs of
these proceedings are taxed to the state.
_____________________________
DAVID H. WELLES, JUDGE
CONCUR:
_____________________________
JOHN H. PEAY, JUDGE
_____________________________
THOMAS T. WOODALL, JUDGE
-3-