Barger v. State

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 § 40-30-101 (repealed 1995).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

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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