IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED MARCH 1998 SESSION April 29, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
GARY S. MAYES, ) ) C.C.A. No. 03C01-9707-CR-00281 Appellant, ) ) Loudon County V. ) ) Honorable E. Eugene Eblen, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Rex A. Dale John Knox Walkup Attorney at Law Attorney General & Reporter 208 Bank Street Lenoir City, TN 37771 Ellen H. Pollack Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493
Charles Hawk District Attorney General
Frank Harvey Assistant District Attorney General P.O. Box 703 Kingston, TN 37763-0703
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS, Judge OPINION
The petitioner, Gary S. Mayes, filed a petition for habeas corpus and/or
post-conviction relief in the criminal court at Loudon County. The court denied
the petition as barred by the statute of limitations. The petitioner appealed. We
affirm the judgment of the trial court.
In his pro se petition for post-conviction relief, the petitioner alleges that
he unknowingly pled guilty in 1993. The petitioner pled to aggravated sexual
battery and was sentenced as a Range I offender to ten years to be served at
30%. The petitioner has served 30% percent of his ten-year sentence. The
board of paroles denied him parole and said that he must serve the entire
sentence. He alleges that the board’s denial was based on an illegal 1976
conviction for attempted rape. He claims that the 1976 conviction is illegal
because his counsel did not inform him of his right to appeal. The petitioner
further alleges that the sexual treatment program presently required for parole
eligibility was not a requirement for parole at the time of his conviction. He
further alleges that he has been denied access to the program. Finally, the
petitioner alleges that the psychological evaluation required for parole eligibility
has not been performed on him yet. He alleges that the state’s denial of access
to these programs violates his liberty interest.
The court appointed counsel to represent the petitioner. In an amended
petition, the petitioner alleged that his conviction was illegal. He alleged that the
indictment was fatally insufficient because it failed to allege the culpable mental
state required for aggravated sexual battery. The petitioner further alleged that
the classification of all sex offenders as mentally ill persons pursuant to
Tennessee Code Annotated § 33-6-302 (1984) violates the petitioner’s rights to
due process and equal protection. He alleges ineffective assistance of counsel
based on his trial attorney’s failure to explain the consequences of his guilty plea.
-2- The state argued statute of limitations and venue. After a brief hearing,
the trial court denied the petition as barred by the statute of limitations.
On appeal, the petitioner argues that the trial court erred in finding that his
petition for post-conviction relief was barred by the statute of limitations. The
petitioner pled guilty on September 13, 1993. He did not appeal. When the
petitioner's conviction became final, the statute of limitations applicable to
post-conviction proceedings was three years. Tenn. Code Ann. § 40-30-102
(repealed 1995). The three-year statute of limitations was subsequently
shortened to one year by the new Post-Conviction Procedure Act, which took
effect on May 10, 1995. See Tenn. Code Ann. § 40-30-201 et seq. (Supp.
1996). The new Post-Conviction Procedure Act governs this petition and all
petitions filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201 et seq.
Because the old three-year statute of limitations had not expired on the effective
date of the act, the petitioner had until May 10, 1996, in which to file his petition
for post-conviction relief. See Compiler's Notes, Tenn. Code Ann. § 40-30-201
(1997). He filed his petition on September 4, 1996, several months after the
statute had expired. His petition is therefore barred by the statute of limitations.
See e.g., Shirley v. State, No. 02C01-9612-CR-00478 (Tenn. Crim. App., at
Jackson, Jan. 7, 1998).
The petitioner next argues that, because his conviction became final
before May 10, 1995, he should retain the right to file a post-conviction petition
within three years of his conviction. He argues that limiting his right to file a
petition to May 10, 1996, violates the ex post facto provisions of state and
federal constitutions. We disagree. Our courts have consistently rejected this
argument. See State v Butler, No. 1338 (Tenn. Crim. App., at Knoxville, May 19,
1992); Johnson v. State, No. 02C01-9605-CR-00136 (Tenn. Crim. App., at
Jackson, June 10, 1997). Generally, an ex post facto law is one that imposes
punishment for an act which was not punishable at the time of its commission, or
-3- an additional punishment to that then prescribed. Calder v. Bull, 3 U.S. 386, 1
(1798); Duncan v. Missouri, 152 U.S. 377 (1894). Here, a change in the period
of limitations for post-conviction relief does not constitute a change to the original
offense or its consequences. The change in the period of limitations relative to
petitions for post-conviction relief has not affected a substantive right of the
petitioner. It relates to a matter of procedure only and is not an ex post facto law
within the meaning of the constitution. State v. Butler, No. 1338 (Tenn. Crim.
App., at Knoxville, May 19, 1992).
The petitioner next argues that he timely filed his petition within the three-
year statute of limitations. Because we have determined that the three-year
statute of limitations does not apply to the petitioner, this issue has no merit.
Lastly, the petitioner argues that his affidavit establishes that his petition
was filed within the one-year statute of limitations. Citing Carey v. State, No.
03C01-9309-CR-00330 (Tenn. Crim. App., at Knoxville, Nov. 8, 1994), the
petitioner asserts that the effective filing date for a pro se petitioner in custody is
the date of delivery to the proper prison authorities. The Court in Carey
specifically did not reach the issue of whether delivery to prison officials
constituted filing with the clerk of the court.
In his affidavit, the petitioner states that he personally delivered his
petition to the authorities at the Riverbend Maximum Security Institute on
December 22, 1995. Also in the record is a cover letter dated December 21,
1995, to the court clerk asking the clerk to file his petition and a prison log
showing that the petition was notarized on December 21, 1995. The court held
that the prison mail log which was made an exhibit to the proceeding did not
support the petitioner’s claim. The mail log indicates that the petition was mailed
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED MARCH 1998 SESSION April 29, 1998
Cecil Crowson, Jr. Appellate C ourt Clerk
GARY S. MAYES, ) ) C.C.A. No. 03C01-9707-CR-00281 Appellant, ) ) Loudon County V. ) ) Honorable E. Eugene Eblen, Judge ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Rex A. Dale John Knox Walkup Attorney at Law Attorney General & Reporter 208 Bank Street Lenoir City, TN 37771 Ellen H. Pollack Assistant Attorney General 425 Fifth Avenue North Nashville, TN 37243-0493
Charles Hawk District Attorney General
Frank Harvey Assistant District Attorney General P.O. Box 703 Kingston, TN 37763-0703
OPINION FILED: ___________________
AFFIRMED
PAUL G. SUMMERS, Judge OPINION
The petitioner, Gary S. Mayes, filed a petition for habeas corpus and/or
post-conviction relief in the criminal court at Loudon County. The court denied
the petition as barred by the statute of limitations. The petitioner appealed. We
affirm the judgment of the trial court.
In his pro se petition for post-conviction relief, the petitioner alleges that
he unknowingly pled guilty in 1993. The petitioner pled to aggravated sexual
battery and was sentenced as a Range I offender to ten years to be served at
30%. The petitioner has served 30% percent of his ten-year sentence. The
board of paroles denied him parole and said that he must serve the entire
sentence. He alleges that the board’s denial was based on an illegal 1976
conviction for attempted rape. He claims that the 1976 conviction is illegal
because his counsel did not inform him of his right to appeal. The petitioner
further alleges that the sexual treatment program presently required for parole
eligibility was not a requirement for parole at the time of his conviction. He
further alleges that he has been denied access to the program. Finally, the
petitioner alleges that the psychological evaluation required for parole eligibility
has not been performed on him yet. He alleges that the state’s denial of access
to these programs violates his liberty interest.
The court appointed counsel to represent the petitioner. In an amended
petition, the petitioner alleged that his conviction was illegal. He alleged that the
indictment was fatally insufficient because it failed to allege the culpable mental
state required for aggravated sexual battery. The petitioner further alleged that
the classification of all sex offenders as mentally ill persons pursuant to
Tennessee Code Annotated § 33-6-302 (1984) violates the petitioner’s rights to
due process and equal protection. He alleges ineffective assistance of counsel
based on his trial attorney’s failure to explain the consequences of his guilty plea.
-2- The state argued statute of limitations and venue. After a brief hearing,
the trial court denied the petition as barred by the statute of limitations.
On appeal, the petitioner argues that the trial court erred in finding that his
petition for post-conviction relief was barred by the statute of limitations. The
petitioner pled guilty on September 13, 1993. He did not appeal. When the
petitioner's conviction became final, the statute of limitations applicable to
post-conviction proceedings was three years. Tenn. Code Ann. § 40-30-102
(repealed 1995). The three-year statute of limitations was subsequently
shortened to one year by the new Post-Conviction Procedure Act, which took
effect on May 10, 1995. See Tenn. Code Ann. § 40-30-201 et seq. (Supp.
1996). The new Post-Conviction Procedure Act governs this petition and all
petitions filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201 et seq.
Because the old three-year statute of limitations had not expired on the effective
date of the act, the petitioner had until May 10, 1996, in which to file his petition
for post-conviction relief. See Compiler's Notes, Tenn. Code Ann. § 40-30-201
(1997). He filed his petition on September 4, 1996, several months after the
statute had expired. His petition is therefore barred by the statute of limitations.
See e.g., Shirley v. State, No. 02C01-9612-CR-00478 (Tenn. Crim. App., at
Jackson, Jan. 7, 1998).
The petitioner next argues that, because his conviction became final
before May 10, 1995, he should retain the right to file a post-conviction petition
within three years of his conviction. He argues that limiting his right to file a
petition to May 10, 1996, violates the ex post facto provisions of state and
federal constitutions. We disagree. Our courts have consistently rejected this
argument. See State v Butler, No. 1338 (Tenn. Crim. App., at Knoxville, May 19,
1992); Johnson v. State, No. 02C01-9605-CR-00136 (Tenn. Crim. App., at
Jackson, June 10, 1997). Generally, an ex post facto law is one that imposes
punishment for an act which was not punishable at the time of its commission, or
-3- an additional punishment to that then prescribed. Calder v. Bull, 3 U.S. 386, 1
(1798); Duncan v. Missouri, 152 U.S. 377 (1894). Here, a change in the period
of limitations for post-conviction relief does not constitute a change to the original
offense or its consequences. The change in the period of limitations relative to
petitions for post-conviction relief has not affected a substantive right of the
petitioner. It relates to a matter of procedure only and is not an ex post facto law
within the meaning of the constitution. State v. Butler, No. 1338 (Tenn. Crim.
App., at Knoxville, May 19, 1992).
The petitioner next argues that he timely filed his petition within the three-
year statute of limitations. Because we have determined that the three-year
statute of limitations does not apply to the petitioner, this issue has no merit.
Lastly, the petitioner argues that his affidavit establishes that his petition
was filed within the one-year statute of limitations. Citing Carey v. State, No.
03C01-9309-CR-00330 (Tenn. Crim. App., at Knoxville, Nov. 8, 1994), the
petitioner asserts that the effective filing date for a pro se petitioner in custody is
the date of delivery to the proper prison authorities. The Court in Carey
specifically did not reach the issue of whether delivery to prison officials
constituted filing with the clerk of the court.
In his affidavit, the petitioner states that he personally delivered his
petition to the authorities at the Riverbend Maximum Security Institute on
December 22, 1995. Also in the record is a cover letter dated December 21,
1995, to the court clerk asking the clerk to file his petition and a prison log
showing that the petition was notarized on December 21, 1995. The court held
that the prison mail log which was made an exhibit to the proceeding did not
support the petitioner’s claim. The mail log indicates that the petition was mailed
to the clerk of the court on August 29, 1996, approximately five days before the
filing date of the petition itself. The petitioner argues the December 22, 1995,
-4- date of delivery that he specified in his affidavit, should control over the date
stamped filed by the clerk’s office. We disagree. The state did not present an
argument on this issue. The lapse of time between when the petition was
notarized and when it was mailed is suspect. However, we have reviewed the
evidence and answered the argument set forth by the petitioner.
If any relief might be warranted, the petitioner must file his application for
writ of habeas corpus in the Davidson County Criminal Court, the court closest to
the petitioner. Tenn. Code Ann. § 29-21-105 (1980). Accordingly, to the extent
that the petitioner’s petition is for habeas corpus relief, it is dismissed because
the Loudon County court does not have jurisdiction. His petition for post-
conviction relief is barred by the statute of limitations.
Accordingly, the judgment of the trial court is affirmed.
__________________________ PAUL G. SUMMERS, Judge
CONCUR:
______________________________ JOHN H. PEAY, Judge
-5- ______________________________ CORNELIA A. CLARK, Special Judge
-6-