State v. Oscar Ellis

• Court: Court of Criminal Appeals of Tennessee
• Decided: September 17, 1997
• Docket: 02C01-9602-CR-00046
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON FILED MAY SESSION, 1997 September 17, 1997

Cecil Crowson, Jr. Appellate C ourt Clerk

OSCAR ELLIS, JR., ) C.C.A. NO. 02C01-9602-CR-00046 ) Appellant, ) ) SHELBY COUNTY ) V. ) ) HON. L. T. LAFFERTY, JUDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST-CONVICTION)

FOR THE APPELLANT: FOR THE APPELLEE:

OSCAR ELLIS, JR., pro se JOHN KNOX WALKUP Inmate #25042-83 Attorney General & Reporter F.C.I. Memphis P.O. Box 34550 (TN-B) M. ALLISON THOMPSON Memphis, TN 38184-0550 Assistant Attorney General 2nd Floor, Cordell Hull Building 425 Fifth Avenue North Nashville, TN 37243

JOHN W. PIEROTTI District Attorney General

KAREN COOK Assistant District Attorney General 201 Poplar Avenue, Ste. 301 Memphis, TN 38103

OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE OPINION

The Petitioner, Oscar Ellis, Jr., appeals the order of the Shelby County

Criminal Court dismissing his pro se petition to vacate his guilty plea or in the

alternative for post-conviction relief. The trial court treated the petition as one for

post-conviction relief and summarily dismissed it as barred by the statute of

limitations. The Petitioner’s primary argument on appeal is that the Post-

Conviction Procedure Act that became effective May 10, 1995, gives him a new

one-year time period in which to file a Petition for Post-Conviction Relief. After

a review of the record, we affirm the lower court’s denial of post-conviction relief.

On June 25, 1976, Petitioner waived a jury trial and pled guilty to four

counts of robbery with a deadly weapon and one count of grand larceny. He was

sentenced to five five-year sentences which ran concurrently. These prior

convictions apparently were used to enhance his punishment for subsequent

federal offenses for which he is now incarcerated at the Federal Correctional

Institution in Memphis, Tennessee. On December 21, 1995, Petitioner filed a pro

se petition seeking post-conviction relief. The trial court subsequently dismissed

the petition as being barred by the three-year statute of limitations.

The record supports the trial court’s finding that the petition is time- barred.

In July 1986, the Tennessee Legislature enacted a three-year statute of

limitations on post-conviction petitions. Tenn. Code Ann. § 40-30-102 (repealed

1995); see also Passarella v. State, 891 S.W.2d 619, 624 (Tenn. Crim. App.),

-2- perm. to appeal denied, (Tenn. Nov. 28, 1994). Petitioner’s convictions and

sentences were effective on June 25, 1976, and he did not appeal any of the

convictions. Under the 1986 statute, Petitioner had 3 years from July 1, 1986 to

file a cognizable claim for post-conviction relief of the 1976 convictions. Tenn.

Code Ann. § 40-30-102 (repealed 1995). Therefore, in order to prevail, Petitioner

must have filed a petition by July 1, 1989, to toll the running of the statute. The

petition in the instant case was filed on December 21, 1995, well past the three-

year statute of limitations. Thus, the Petitioner is barred from seeking post-

conviction relief.

W e reject Petitioner’s argument that the new Post-Conviction Procedure

Act, effective May 10, 1995, grants an additional one-year period, until May 10,

1996, to file a post-conviction petition. Tenn. Code Ann. § 40-30-201 et seq.

(Supp. 1996). The new Act does not revive previously time-barred post-

conviction relief claims. Arnold Carter v. State, No. 03-S-01-9612-CR-00117

(Tenn. at Knoxville, Sept. 8, 1997); see also W olfenbarger v. State, No. 03C01-

9603-CC-00124 (Tenn. Crim. App. at Knoxville, Apr. 1, 1997) (Rule 11

application filed, June 3, 1997); Carter v. State, No. 01C01-9511-CC-00398

(Tenn. Crim. App. at Nashville, Feb. 12, 1997); Pendleton v. State, No. 01C01-

9604-CR-00158 (Tenn. Crim. App. at Nashville, Feb. 12, 1997) (Rule 11

application filed, Mar. 24, 1997); Blake v. State, No. 03C01-9603-CR-00110

(Tenn. Crim. App. at Knoxville, Feb. 12, 1997) (Rule 11 application filed, Feb. 27,

1997); Koprowski v. State, No. 03C01-9511-CC-00365 (Tenn. Crim. App. at

Knoxville, Jan. 28, 1997) (Rule 11 application filed, Jan. 30, 1997).

-3- Even though the instant petition was filed after the effective date of the new

Act, the applicable three-year statute of limitations in the 1986 Act barred the

Petitioner’s post-conviction relief prior to May 10, 1995. Petitioner suggests that

this provision provides every person convicted of an offense in Tennessee

another opportunity to attack his conviction. If Petitioner had any claims he

wished to present in a post-conviction cause of action, they expired on July 1,

1989, for the 1976 convictions. After that date, Petitioner no longer had a claim

under either the old or the new act. Under the authority cited above, the 1995 Act

will not revive a claim which is already time-barred.

Accordingly, we affirm the judgment of the trial court and hold that the

Petitioner’s petition for post-conviction relief is time-barred by the applicable

three-year statute of limitations under the 1986 Act.

____________________________________ THOMAS T. W OODALL, Judge

CONCUR:

___________________________________ GARY R. WADE, Judge

___________________________________ JOHN H. PEAY, Judge

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