Arthur Ray Lepley

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 27, 1990
• Docket: 01C01-9903-CR-00084
• Status: Published

Opinion

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-