State v. Isaac Herron

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 15, 1997
• Docket: 02C01-9509-CR-00253
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

APRIL 1997 SESSION FILED September 15, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

ISSAC LYDELL HERRON, ) NO. 02C01-9509-CR-00253 ) Appellant ) SHELBY COUNTY ) V. ) HON. FRED AXLEY, JUDGE ) STATE OF TENNESSEE, ) (Post-Conviction) ) Appellee ) )

FOR THE APPELLANT FOR THE APPELLEE

Issac Lydell Herron #102289 John Knox Walkup Cold Creek Correctional Facility Attorney General and Reporter P.O. Box 1000 450 James Robertson Parkway Henning, Tennessee 38041-1000 Nashville, Tennessee 37243-0493

Ellen H. Pollack Assistant Attorney General 450 James Robertson Parkway Nashville, Tennessee 37243-0493

John W. Pierotti District Attorney General 201 Poplar Avenue Memphis, Tennessee 38103-1947

C. Alanda Horne Assistant District Attorney General 201 Poplar Avenue Memphis, Tennessee 38103-1947

OPINION FILED:______

AFFIRMED

William M. Barker, Judge Opinion

The Appellant, Issac Lydell Herron, appeals as of right the Shelby County

Criminal Court’s dismissal of his petition for post-conviction relief. In 1984, the

Appellant was convicted of second degree murder and is currently serving a seventy-

two year sentence as a Range II especially aggravated offender in the Tennessee

Department of Correction. This Court affirmed the Appellant’s conviction in 1985 and

no further appeals were taken. See State v. Isaac Lydell Herron, C.C.A. No. 7 (Tenn.

Crim. App., Jackson, Apr. 10, 1985). On September 21, 1995, the Appellant filed a

pro se petition for post-conviction relief alleging ineffective assistance of counsel. On

November 15, 1995, without an evidentiary hearing, the trial court dismissed the

petition ruling that it was barred by the statute of limitations.

Pursuant to the now-repealed Post-Conviction Procedure Act, the statute of

limitation applicable to the Appellant’s post-conviction claims was three years.1 Tenn.

Code Ann. § 40-30-102 (repealed 1995). That three-year period began running on

July 1, 1986, the effective date of the statute. The last day on which the Appellant

could have filed such a petition was in July of 1989. See e.g. State v. Mullins, 767

S.W.2d 668, 669 (Tenn. Crim. App. 1988); Smith v. State, 757 S.W.2d 683, 685

(Tenn. Crim. App. 1988); State v. Masucci, 754 S.W.2d 90, 91 (Tenn. Crim. App.

1988); Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). The

Appellant’s petition was filed in September of 1995, more than six years after the

statute expired. Consequently, the trial court properly dismissed the Appellant’s

petition.

Any contention by the Appellant that the new Post-Conviction Procedure Act,

effective May 10, 1995, provided him with a one-year window of opportunity within

which to file his post-conviction petition is meritless. Similar attempts to circumvent

the statute of limitations in this manner have been previously rejected by panels of this

1 Prior to the enactment of the 1986 Post-Conviction Procedure Act, no statute of limitations for post-conviction applications existed.

2 Court. See Roy Barnett v. State, C.C.A. No. 03C01-9512-CV-00394 (Tenn. Crim.

App., Knoxville, Feb. 20, 1997); Stephen Koprowski v. State, C.A.A. No. 03C01-9511-

CC-00365 (Tenn. Crim. App., Knoxville, Jan. 28, 1997); Johnny L. Butler v. State,

C.C.A. No. 02C01-9509-CR-00289 (Tenn. Crim. App., Jackson, Dec. 2, 1996). But

see Arnold Carter v. State, C.C.A. No. 03C01-9509-CC-00270 (Tenn. Crim. App.,

Knoxville, July 11, 1996).

Accordingly, the trial court’s dismissal of the Appellant’s petition for post-

conviction relief is affirmed.

__________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

__________________________ JOSEPH M. TIPTON, JUDGE

__________________________ DAVID G. HAYES, JUDGE