Calvin Oliver v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 01C01-9902-CR-00049
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

CALVIN OLIVER, AT NASHVILLE

) FILED ) C.C.A. NO. 01C01-9902-CR-00049 Appellant, ) (No. 13773 Below)August 19, 1999 ) MARSHALL C OUNTY VS. ) Cecil W. Crowson ) The Hon. William Charles Court Clerk Appellate Lee 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 motion requesting that the

judgment in the above-styled cause be affirmed pursuant to Rule 20, Tennessee Court of

Criminal Appeals Rules.

It appears from the petitioner’s post-conviction petition that he pled guilty to theft,

auto burglary, and delivery of a schedule II controlled substance on August 7, 1996. It does

not appear that an appeal was taken. Subsequently, on January 5, 1999, the petitioner filed

a pro se petition for post-conviction relief. In his petition, he claimed that the statute of

limitations should be waived because his I.Q. is less than 85. On January 8, 1999, the trial

court dismissed the petition as outside the statute of limitations. We affirm.

Pursuant to T.C.A. § 40-30-206(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 reco gnized as exist ing 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.

In the present case, the petitioner filed his petition for post-conviction relief outside the statute of limitations set forth in T.C.A. § 40-30-202(a), and he does not submit that

any of his claims fall within one of the exception s set forth in T.C.A. § 40-30-202(b). Instead,

the petitioner contends that the statute of limitations should be tolled because his I.Q. is below

85.

The record does not reflect that the petitioner is mentally incompetent, and 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). Nor do we find that application of the statute o f limitations in this instance does not

violate due process principles. See Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992).

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

the judgm ent of the tria l court is affirmed. It appearing that the petitioner is indigent, costs of

these proceedings are taxed to the state.

_____________________________ JERRY L. SMITH, JUDGE

CONCUR:

_____________________________ JOHN H. PEAY, JUDGE

_____________________________ DAVID H. WELLES, JUDGE

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