Barger v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: March 24, 1998
• Docket: 03C01-9705-CR-00192
• Status: Published

Opinion

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 § 40-30-101 (repealed 1995).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

-2- 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.

-3- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ JERRY L. SMITH, Judge

___________________________________ WILLIAM B. ACREE, JR., Special Judge

-4-