FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE July 9, 1998 MAY 1998 SESSION Cecil Crowson, Jr. Appellate C ourt Clerk
FREDERICK ORLANDO BLACK, ) ) Appellant, ) C.C.A. No. 03C01-9710-CC-00466 ) vs. ) Anderson County ) STATE OF TENNESSEE, ) Hon. William Lantrip, Judge ) Appellee. ) (Post Conviction) )
FOR THE APPELLANT: FOR THE APPELLEE:
CHRISTOPHER VAN RIPER JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 300 Main St., Ste. 200 Clinton, TN 37716 TODD R. KELLEY Asst. Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493
JAMES N. RAMSEY District Attorney General
JAN HICKS Asst. District Attorney General 127 Anderson County Courthouse Clinton, TN 37716
OPINION FILED:________________
AFFIRMED
CURWOOD WITT, JUDGE OPINION
The petitioner, Frederick Orlando Black, appeals the Anderson County
Criminal Court's denial of his petitions for post-conviction relief. In 1983, the
petitioner pleaded guilty to malicious shooting. In 1988, he pleaded guilty to
aggravated assault. Presently, he is serving a federal sentence for a drug offense.
In his post-conviction petitions, he alleges his federal sentence was enhanced due
to the 1983 and 1988 Anderson County convictions. He seeks to have the
convictions set aside based on various infirmities. The court below found the
petitions barred by the statute of limitations and dismissed the actions. The
petitioner appeals the dismissals, claiming this court should find error (1) in the trial
court's failure to make findings pursuant to Burford v. State, 845 S.W.2d 204 (Tenn.
1995) and Sands v. State, 903 S.W.2d 297 (Tenn. 1995), and (2) in failing to find
the statute of limitations deprived the petitioner of due process. Having reviewed
the record, we find no error and affirm the judgment of the trial court.
The petitioner's post-conviction actions were filed on April 8, 1996 and
December 10, 1996. Both dates are well past the statute of limitations applicable
to post-conviction actions. Tenn. Code Ann. § 40-30-202(a) (1997); see Carter v.
State, 952 S.W.2d 417 (Tenn. 1997) (petitioners for whom three-year statute of
limitations expired prior to enactment of one year statute of limitations do not have
right to bring post-conviction claim within one year of enactment). Under the current
statute, consideration of a petition not filed within the statute of limitations is proper
only if the claim (1) is based upon a newly established constitutional right not
recognized at the time of trial, (2) is based upon new scientific evidence establishing
actual innocence of the petitioner, or (3) the claim is based upon the enhancement
of sentence not resulting from a guilty plea with an agreed sentence where the
enhancing sentence subsequently has been held to be invalid. Tenn. Code Ann.
§ 40-30-202(b) (1997).
2 The petitioner's claims do not fit into any of the statutory categories
for untimely consideration. His allegations pertain to ineffective assistance of
counsel, unknowing and involuntary guilty pleas, lack of jurisdiction of the trial court,
lack of notice, and failure of the prosecutor to disclose allegedly exculpatory
evidence.1
Furthermore, we are unpersuaded that the petitioner's claims are
controlled by Burford or Sands. Those cases arose under the previous version of
the Post-Conviction Procedure Act, which provided that post-conviction petitions
had to be filed within (a) three years of the date of the final action of the highest
state appellate court to which an appeal was taken, or (b) three years from July 1,
1986, the effective date of the statute. See Tenn. Code Ann. § 40-30-102 (1990)
(repealed 1995); State v. Mullins, 767 S.W.2d 668, 669 (Tenn. Crim. App. 1988).
An exception applied, however, to preserve the right of a post-conviction petitioner
to mount an otherwise untimely challenge where strict application of the statute of
limitations would deprive the petitioner of due process of law. Burford v. State, 845
S.W.2d 204 (Tenn. 1992).
Burford was a unique case in which the petitioner was caught in a
procedural trap in which he first had to successfully challenge convictions in a post-
conviction proceeding in one county in order to have a justiciable claim for relief in
post-conviction proceedings in another county. Burford, 845 S.W.2d at 208. He
was caught in a quandary because the approach of the statute of limitations
applicable to the latter claim was looming prior to a determination of the former
1 The allegedly exculpatory evidence relates to the aggravated assault conviction. According to the petitioner, the victim of the aggravated assault told the prosecutor that he had provoked the petitioner and was at fault for what occurred. The petitioner alleges this statement was withheld by the prosecutor and if known to him would have affected his decision to enter a guilty plea.
3 claim. Burford, 845 S.W.2d at 208. The supreme court found the application of the
statute of limitations to the latter claim violative of due process in that limited
circumstance and allowed the Burford petitioner to maintain his claim
notwithstanding the statute of limitations. See Burford, 845 S.W.2d at 209-10.
Burford did not, however, give post-conviction petitioners the right to wage collateral
attack on stale convictions themselves outside the statute of limitations. Unlike the
present petitioner, the petitioner in Burford filed his attack on his enhancing
convictions within the time then allowed under the Act. See generally Burford, 845
S.W.2d 204. Unlike Burford, the petitioner herein seeks to challenge not his
enhanced federal sentence, over which this court has no jurisdiction, but his
enhancing Tennessee convictions. In this situation, the Burford exception is
inapplicable.2
In Sands, the petitioner alleged that the jury instructions used in his
1977 trial were found unconstitutional by the United States Supreme Court in 1979.
Sands, 903 S.W.2d at 298. The Sands petitioner initiated his post-conviction claim
in 1990,3 well outside the three year statute of limitations. See Sands, 903 S.W.2d
at 298. In passing on the claim, the supreme court concluded that the basic rule of
Burford was that "due process prohibits the strict application of the post-conviction
statute of limitations to bar a petitioner's claim when the grounds for relief, whether
legal or factual, arise . . . after the point at which the limitations period would
normally have begun to run." Sands, 903 S.W.2d at 301. The Sands court
established a three-step analysis for applying the Burford rule to specific factual
2 In her concurring opinion in Burford, Justice Daughtrey discusses a hypothetical situation in which evidence suppressed by the prosecution might surface many years after a trial was completed. Burford, 845 S.W.2d at 211 (Daughtrey, J., concurring).
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FILED IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE July 9, 1998 MAY 1998 SESSION Cecil Crowson, Jr. Appellate C ourt Clerk
FREDERICK ORLANDO BLACK, ) ) Appellant, ) C.C.A. No. 03C01-9710-CC-00466 ) vs. ) Anderson County ) STATE OF TENNESSEE, ) Hon. William Lantrip, Judge ) Appellee. ) (Post Conviction) )
FOR THE APPELLANT: FOR THE APPELLEE:
CHRISTOPHER VAN RIPER JOHN KNOX WALKUP Attorney at Law Attorney General & Reporter 300 Main St., Ste. 200 Clinton, TN 37716 TODD R. KELLEY Asst. Attorney General 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493
JAMES N. RAMSEY District Attorney General
JAN HICKS Asst. District Attorney General 127 Anderson County Courthouse Clinton, TN 37716
OPINION FILED:________________
AFFIRMED
CURWOOD WITT, JUDGE OPINION
The petitioner, Frederick Orlando Black, appeals the Anderson County
Criminal Court's denial of his petitions for post-conviction relief. In 1983, the
petitioner pleaded guilty to malicious shooting. In 1988, he pleaded guilty to
aggravated assault. Presently, he is serving a federal sentence for a drug offense.
In his post-conviction petitions, he alleges his federal sentence was enhanced due
to the 1983 and 1988 Anderson County convictions. He seeks to have the
convictions set aside based on various infirmities. The court below found the
petitions barred by the statute of limitations and dismissed the actions. The
petitioner appeals the dismissals, claiming this court should find error (1) in the trial
court's failure to make findings pursuant to Burford v. State, 845 S.W.2d 204 (Tenn.
1995) and Sands v. State, 903 S.W.2d 297 (Tenn. 1995), and (2) in failing to find
the statute of limitations deprived the petitioner of due process. Having reviewed
the record, we find no error and affirm the judgment of the trial court.
The petitioner's post-conviction actions were filed on April 8, 1996 and
December 10, 1996. Both dates are well past the statute of limitations applicable
to post-conviction actions. Tenn. Code Ann. § 40-30-202(a) (1997); see Carter v.
State, 952 S.W.2d 417 (Tenn. 1997) (petitioners for whom three-year statute of
limitations expired prior to enactment of one year statute of limitations do not have
right to bring post-conviction claim within one year of enactment). Under the current
statute, consideration of a petition not filed within the statute of limitations is proper
only if the claim (1) is based upon a newly established constitutional right not
recognized at the time of trial, (2) is based upon new scientific evidence establishing
actual innocence of the petitioner, or (3) the claim is based upon the enhancement
of sentence not resulting from a guilty plea with an agreed sentence where the
enhancing sentence subsequently has been held to be invalid. Tenn. Code Ann.
§ 40-30-202(b) (1997).
2 The petitioner's claims do not fit into any of the statutory categories
for untimely consideration. His allegations pertain to ineffective assistance of
counsel, unknowing and involuntary guilty pleas, lack of jurisdiction of the trial court,
lack of notice, and failure of the prosecutor to disclose allegedly exculpatory
evidence.1
Furthermore, we are unpersuaded that the petitioner's claims are
controlled by Burford or Sands. Those cases arose under the previous version of
the Post-Conviction Procedure Act, which provided that post-conviction petitions
had to be filed within (a) three years of the date of the final action of the highest
state appellate court to which an appeal was taken, or (b) three years from July 1,
1986, the effective date of the statute. See Tenn. Code Ann. § 40-30-102 (1990)
(repealed 1995); State v. Mullins, 767 S.W.2d 668, 669 (Tenn. Crim. App. 1988).
An exception applied, however, to preserve the right of a post-conviction petitioner
to mount an otherwise untimely challenge where strict application of the statute of
limitations would deprive the petitioner of due process of law. Burford v. State, 845
S.W.2d 204 (Tenn. 1992).
Burford was a unique case in which the petitioner was caught in a
procedural trap in which he first had to successfully challenge convictions in a post-
conviction proceeding in one county in order to have a justiciable claim for relief in
post-conviction proceedings in another county. Burford, 845 S.W.2d at 208. He
was caught in a quandary because the approach of the statute of limitations
applicable to the latter claim was looming prior to a determination of the former
1 The allegedly exculpatory evidence relates to the aggravated assault conviction. According to the petitioner, the victim of the aggravated assault told the prosecutor that he had provoked the petitioner and was at fault for what occurred. The petitioner alleges this statement was withheld by the prosecutor and if known to him would have affected his decision to enter a guilty plea.
3 claim. Burford, 845 S.W.2d at 208. The supreme court found the application of the
statute of limitations to the latter claim violative of due process in that limited
circumstance and allowed the Burford petitioner to maintain his claim
notwithstanding the statute of limitations. See Burford, 845 S.W.2d at 209-10.
Burford did not, however, give post-conviction petitioners the right to wage collateral
attack on stale convictions themselves outside the statute of limitations. Unlike the
present petitioner, the petitioner in Burford filed his attack on his enhancing
convictions within the time then allowed under the Act. See generally Burford, 845
S.W.2d 204. Unlike Burford, the petitioner herein seeks to challenge not his
enhanced federal sentence, over which this court has no jurisdiction, but his
enhancing Tennessee convictions. In this situation, the Burford exception is
inapplicable.2
In Sands, the petitioner alleged that the jury instructions used in his
1977 trial were found unconstitutional by the United States Supreme Court in 1979.
Sands, 903 S.W.2d at 298. The Sands petitioner initiated his post-conviction claim
in 1990,3 well outside the three year statute of limitations. See Sands, 903 S.W.2d
at 298. In passing on the claim, the supreme court concluded that the basic rule of
Burford was that "due process prohibits the strict application of the post-conviction
statute of limitations to bar a petitioner's claim when the grounds for relief, whether
legal or factual, arise . . . after the point at which the limitations period would
normally have begun to run." Sands, 903 S.W.2d at 301. The Sands court
established a three-step analysis for applying the Burford rule to specific factual
2 In her concurring opinion in Burford, Justice Daughtrey discusses a hypothetical situation in which evidence suppressed by the prosecution might surface many years after a trial was completed. Burford, 845 S.W.2d at 211 (Daughtrey, J., concurring). In this case, the petitioner, who has had the benefit of counsel throughout these proceedings, makes no allegation about when he discovered the information allegedly suppressed by the prosecutor. 3 The Sands petitioner had filed two earlier post-conviction actions.
4 situations. Under this test, the court should:
(1) determine when the limitations period would normally have begun to run;
(2) determine whether the grounds for relief actually arose after the limitations period would normally have commenced; and
(3) if the grounds are "later arising," determine if, under the facts of the case, a strict application of the limitations period would effectively deny the petitioner a reasonable opportunity to present the claim . . . carefully weigh[ing] the petitioner's liberty interest in "collaterally attacking constitutional violations occurring during the conviction process" against the State's interest in preventing the litigation of "stale and fraudulent claims."
Sands, 903 S.W.2d 301 (quoting Burford, 845 S.W.2d at 207-08).
In the case at bar, the only claim which might possibly be categorized
as "later arising" per Sands is the petitioner's allegation that the prosecutor
suppressed exculpatory evidence. Even if so categorized, such a claim is doomed
to failure because the petitioner does not allege the date on which he discovered
the purported misdeeds of the prosecution. The lack of this information prevents
the court, first, from determining whether the grounds actually arose after the
limitations period commenced, and second, balancing the petitioner's liberty interest
against the state's interest in preventing collateral attack on an eight-year-old
conviction. See Tenn. Code Ann. § 40-30-206(f) (1997) ("If the facts alleged, taken
as true, fail to show that the petitioner is entitled to relief . . . the petition shall be
dismissed.") Thus, Sands would not save the petitioner's claim.
Because the petitioner failed to allege facts under which Burford and
Sands might apply to his case, the trial court did not err by not making findings
under the three-step Sands analysis.
Finding no error in the trial court's dismissal of Black's petitions, we
5 affirm its judgment.
_______________________________ CURWOOD WITT, JUDGE
CONCUR:
_____________________________ JOSEPH M. TIPTON, JUDGE
_____________________________ JOE G. RILEY, JUDGE