State v. Cain

• Court: Court of Criminal Appeals of Tennessee
• Decided: December 1, 2010
• Docket: 03C01-9609-CR-00347
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JULY SESSION, 1997 October 8, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE, ) C.C.A. NO. 03C01-9609-CR-00347 ) Appellee, ) ) HAMILTON COUNTY ) V. ) ) HON. STEPHEN M. BEVIL, JUDGE GEORGE WILLIAM CAIN, ) ) Appe llant. ) (POST CONVICTION)

FOR THE APPELLANT: FOR THE APPELLEE:

ARDENA J. GARTH JOHN KNOX WALKUP District Public Defender Attorney General & Reporter

DONNA ROBINSON MILLER MARVIN E. CLEMENTS, JR. Assistant Public Defender Assistant Attorney General 2nd Floor, Cordell Hull Building KARLA GOTHARD 425 Fifth Avenue North Assistant Public Defender Nashville, TN 37243-0943 701 Cherry Suite - Suite 300 Chattanooga, TN 37402 WILL IAM H. C OX, III District Attorney General

BATES W. BRYAN, JR. Assistant District Attorney General Chattanoo ga-Ham ilton County Courts Building Chattanooga, TN 37402

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE OPINION

The Petitioner, George William Cain, appeals the order of the

Hamilton Coun ty Crim inal Co urt dism issing his petition for post-co nviction relief.

The trial cou rt found that the relief requested was barred by the statute of

limitations and dism issed the petition witho ut an evid entiary he aring. On appe al,

the Petitioner argues that Tennessee Code Annotated section 40-30-201 et seq.

(Supp. 1996), provides for a “one year wind ow of op portunity” to file for post-

conviction relief through May 10, 1996. In the alternative, Petitioner argues that

application of the sta tute of lim itations to his petition would violate constitutional

due process guarantees. Finding no merit to the Petitioner’s arguments, we

affirm the ju dgme nt of the trial co urt.

On May 30, 1995, Petitioner filed his pro se petition for post-

conviction relief in the Criminal Court of Hamilton County. In this petition, he

attacked five (5) fe lony co nviction s he re ceived in Hamilton County Crimina l Court

on November 28, 1975, in addition to a co nviction for sec ond d egree murd er in

the Ham ilton Cou nty Crim inal Cou rt on Nov embe r 30, 198 4. The firs t five (5)

convictions were the result of guilty pleas, and the second degree murder

conviction wast he result of a jury trial. The trial court’s order of dismissal states

that this court affirmed the conviction for second degree murder in an opinion

filed on December 2, 1985, and that our supreme court denied the Petition er’s

application for permission to appeal on March 25, 1986. The Petition alleges

various ground s for relief, but in his appeal Petitioner argues that the guilty plea

hearings in 1975 were done in a m anne r in whic h he w as no t advise d of his

-2- constitutional rights in violatio n of Roun saville v. Eva tt, 733 S.W.2d 506 (Tenn.

1987) and Boykin v. Alabama, 395 U.S . 238 (19 69).

Petitioner argues that the decision of our supreme court in Burford

v. State, 845 S.W.2d 204 (Tenn. 1992), mandates that application of the statute

of limitations in his case would vio late his right to due pro cess.

W e initially note that in Arnold Carter v. State, _____ S.W.2d _____,

No. 03-S -01-9 612-C R-00 117, s lip op. at 2, Monroe County (Tenn., at Knoxville,

Sept. 8, 1997), o ur supreme court ruled as follows: “[p]etitioners for whom the

statute of limitations expired prior to the effective date of the new Act, i.e., May

10, 1995, do not h ave an a dditional ye ar in which to file petitions fo r post-

conviction relief.” Therefore, there is no merit to Petitioner’s argument that the

Post-Conviction Procedure Act, which was effective on May 10, 1995, grants a

“one year window of opportunity” to file a petition for post-co nviction relief

regarding claims which had previously been barred by the statute of limitations.

Petitioner had u ntil July 1 , 1989 in whic h to file a petition for post-conviction relief

attacking the 1975 convictions and the conviction for second degree m urder.

Tenn. C ode Ann . § 40-30-102 (repealed 19 95).

Neither Boyk in, a decision by the United States Suprem e Court filed

in 1969, nor Rou nsaville , a decision of our supreme court in 1987, stated grounds

for relief which arose after the statute of limitations had expired on any of

Petitione r’s conviction s. There fore, Burford is not app licable.

We affirm the ju dgme nt of the trial co urt.

-3- ____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ DAVID H. WELLES , Judge

___________________________________ JOHN K. BYERS, Senior Judge

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