IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE September 27, 1999
Cecil Crowson, Jr. JULY SESSION, 1999 Appellate Court Clerk
THO MAS E UGE NE G RAHAM ,) C.C.A. NO. 03C01-9809-CR-00337 ) Appe llant, ) ) ) HAMILTON COUNTY VS. ) ) HON. STEPHEN M. BEVIL, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMILTON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
HEIDI A. BARCUS MICHAEL E. MOORE 606 W. Main, Suite 202 Solicitor General Knoxville, TN 37902 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243
JERRY N. ESTES District Attorney General
BARRY STEELMAN Assistant District Attorney General Suite 300 - Courts Building 600 Market Street Chattanooga, TN 37402
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION This case presents us with a second opportunity to consider the
Defe ndan t’s reques t for post-co nviction relief. Although the Defendant, Thomas
Eugene Graha m, pres ents four issues for our review, we must first resolve the
question of whether we reach the merits of the petition. Essential to our
resolution of this matter is an analysis of the rather lengthy procedural history of
the case. We conclude that co nside ration o f the m erits of th e petitio n is barred
and the refore affirm the trial cour t’s denial of p ost-con viction relief.
The Defendant was convicted of aggravated rape, aggravated kidnaping,
and aggravated burglary in 1991. He was sentenced to twenty-five years for the
aggravated rape conviction, twenty-five years for the aggravated kidnaping
conviction, and six ye ars for the a ggravate d burgla ry conviction . On app eal to
this Cour t in 199 3, his convictions were affirmed; howe ver, this Court reduced the
length of his sentence for aggravated kidnaping to twelve years.1 On October 4,
1993, the Tennessee Supreme Court denied the Defendant’s application for
perm ission to app eal.
In July of 1994 , the Defe ndant filed a petition for post-con viction relief.
After an evidentiary hearing, the trial court denied the Defendant’s request for
relief. This Court affirmed the denial of the petition on June 24, 1996. 2
1 State v. Thomas Eugene Graham, No. 03C01-9112-CR-00391, 1993 WL 218264 (Tenn. Crim. App., Knoxville, June 22, 1993). 2 Thomas Eugene Graham v. State, No. 03C01-9506-CR-00181, 1996 WL 341600 (Tenn. Crim. App., Knoxville, June 24, 1996).
-2- Application for permission to appeal to the Tennessee Supreme Court was
denied.
On Octob er 8, 199 6, the De fendan t filed a mo tion to reop en his po st-
conviction petition. The trial court overruled the motion on October 14, and the
Defendant filed anoth er motio n to reopen his post-conviction petition on April 14,
1997. Upon reco nsideration of the matter, the trial court granted the motion,
ordering that the Defendant’s motion to reopen be treated as a post-conviction
petition. On August 21, 1997, the Defendant filed an “Amended Petition for Relief
from Conviction of Se ntence.” Th e trial court conduc ted an eviden tiary hearing
on November 26, 19 97, wh ich res ulted in the de nial of th e Def enda nt’s petition.
The Defendant now appeals the denial of his second petition for post-conviction
relief.
Tennessee Code Annotated § 40-30-217 outlines the proce dure for filing
“[m]otion s to reop en.” It states , in pertinen t part,
A petitioner m ay file a mo tion in the trial court to reopen the first post-conviction petition only if the following applies: (1) The claim in the motion is based upon a final ruling of an appellate court esta blishing a constitution al right that was not recognized as existing at the time of trial, if retrospective application of that right is required. Such motion must be filed within one (1) year of the ruling of the high est state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial; or (2) The cla im in the m otion is base d upo n new scient ific evidence estab lishing that su ch pe titioner is actua lly innocent of the offense or offenses for which the petitioner was convicted; or (3) The claim asserted in the motion seeks relief from a sentence that was enhanced because of a previous conviction and such conviction in the case in which the claim is asserted was not a guilty plea w ith an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the motion must be filed within one (1) year of the finality of the ruling holding the previous conviction to be invalid; and
-3- (4) It appears that the facts u nderly ing the claim , if true, wo uld establish by clea r and c onvinc ing evid ence that the petition er is entitled to have the conviction set aside or the sentence reduced.
Tenn. C ode Ann . § 40-30-217 (a)(1)-(4) (1997).
In its order denying the Defendant’s second petition for post-conviction
relief (originally filed as a motion to reopen the petition for post-conviction relief),
the trial court po inted out th at in supp ort of his argument, the Defendant relied
upon the opinio n of this Cour t in State v. Hill, No. 01C01-9508-CC-00267, 1996
W L 346941 (Tenn. Crim. A pp., Nas hville, Jan. 6, 1 997), rev’d, 954 S.W.2d 725
(Tenn. 1997). The Hill case was pending before our supreme court at the time
the Defendant filed his motion to reopen his post-conviction petition, and the
holding of this Court in Hill was subsequently reversed by the Tennessee
Supreme Court. See id. The trial court stated , “This Court overruled the motion
[to reopen po st-conviction proceedings] on October 14 th , but upon
reconsideration, since the Hill case was pending in the Tennessee Supreme
Court, this Court granted the motion to re-open the petition.” Neither the holding
of this Court nor the holding of the Tennessee Supreme Court in Hill established
“a cons titutiona l right that was n ot recog nized as existing at the time of trial.”
Tenn. Code Ann. § 4 0-30-21 7(a)(1) (19 97); see State v. Hill, No. 01C01-9508-
CC-00267, 1996 WL 346941 (Tenn. Crim. App., N ashville, Ja n. 6, 1997 ), rev’d,
954 S.W.2d 725 (Tenn. 1997). Nor does the Defendant enunciate any other v alid
reason , as enum erated in Tenn essee Code Annota ted § 40 -30-217 , to support
the filing of his motion. Tenn. Code Ann. § 40-30-217(a)(1)-(4) (1997 ). We
therefore conclude that the trial judge erred by granting the Defendant’s motion
to reopen his post-conviction petition.
-4- Furthermore, if the motion to reopen is treated as a new post-conviction
petition, it is barred under Tennessee Code A nnotated § 40-30-202, which
provides:
(a) Except as provided in subsections (b) and (c), a person in custody under a sentence of a court of this state must petition for post-conviction relief under this part within one (1) ye ar of the da te of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of such petition shall be barred. The statute of limitations shall not be tolled for any reason, including the tolling or saving provision otherwise availab le at law or eq uity.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE FILED AT KNOXVILLE September 27, 1999
Cecil Crowson, Jr. JULY SESSION, 1999 Appellate Court Clerk
THO MAS E UGE NE G RAHAM ,) C.C.A. NO. 03C01-9809-CR-00337 ) Appe llant, ) ) ) HAMILTON COUNTY VS. ) ) HON. STEPHEN M. BEVIL, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)
ON APPEAL FROM THE JUDGMENT OF THE CRIMINAL COURT OF HAMILTON COUNTY
FOR THE APPELLANT: FOR THE APPELLEE:
HEIDI A. BARCUS MICHAEL E. MOORE 606 W. Main, Suite 202 Solicitor General Knoxville, TN 37902 TODD R. KELLEY Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243
JERRY N. ESTES District Attorney General
BARRY STEELMAN Assistant District Attorney General Suite 300 - Courts Building 600 Market Street Chattanooga, TN 37402
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE OPINION This case presents us with a second opportunity to consider the
Defe ndan t’s reques t for post-co nviction relief. Although the Defendant, Thomas
Eugene Graha m, pres ents four issues for our review, we must first resolve the
question of whether we reach the merits of the petition. Essential to our
resolution of this matter is an analysis of the rather lengthy procedural history of
the case. We conclude that co nside ration o f the m erits of th e petitio n is barred
and the refore affirm the trial cour t’s denial of p ost-con viction relief.
The Defendant was convicted of aggravated rape, aggravated kidnaping,
and aggravated burglary in 1991. He was sentenced to twenty-five years for the
aggravated rape conviction, twenty-five years for the aggravated kidnaping
conviction, and six ye ars for the a ggravate d burgla ry conviction . On app eal to
this Cour t in 199 3, his convictions were affirmed; howe ver, this Court reduced the
length of his sentence for aggravated kidnaping to twelve years.1 On October 4,
1993, the Tennessee Supreme Court denied the Defendant’s application for
perm ission to app eal.
In July of 1994 , the Defe ndant filed a petition for post-con viction relief.
After an evidentiary hearing, the trial court denied the Defendant’s request for
relief. This Court affirmed the denial of the petition on June 24, 1996. 2
1 State v. Thomas Eugene Graham, No. 03C01-9112-CR-00391, 1993 WL 218264 (Tenn. Crim. App., Knoxville, June 22, 1993). 2 Thomas Eugene Graham v. State, No. 03C01-9506-CR-00181, 1996 WL 341600 (Tenn. Crim. App., Knoxville, June 24, 1996).
-2- Application for permission to appeal to the Tennessee Supreme Court was
denied.
On Octob er 8, 199 6, the De fendan t filed a mo tion to reop en his po st-
conviction petition. The trial court overruled the motion on October 14, and the
Defendant filed anoth er motio n to reopen his post-conviction petition on April 14,
1997. Upon reco nsideration of the matter, the trial court granted the motion,
ordering that the Defendant’s motion to reopen be treated as a post-conviction
petition. On August 21, 1997, the Defendant filed an “Amended Petition for Relief
from Conviction of Se ntence.” Th e trial court conduc ted an eviden tiary hearing
on November 26, 19 97, wh ich res ulted in the de nial of th e Def enda nt’s petition.
The Defendant now appeals the denial of his second petition for post-conviction
relief.
Tennessee Code Annotated § 40-30-217 outlines the proce dure for filing
“[m]otion s to reop en.” It states , in pertinen t part,
A petitioner m ay file a mo tion in the trial court to reopen the first post-conviction petition only if the following applies: (1) The claim in the motion is based upon a final ruling of an appellate court esta blishing a constitution al right that was not recognized as existing at the time of trial, if retrospective application of that right is required. Such motion must be filed within one (1) year of the ruling of the high est state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial; or (2) The cla im in the m otion is base d upo n new scient ific evidence estab lishing that su ch pe titioner is actua lly innocent of the offense or offenses for which the petitioner was convicted; or (3) The claim asserted in the motion seeks relief from a sentence that was enhanced because of a previous conviction and such conviction in the case in which the claim is asserted was not a guilty plea w ith an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the motion must be filed within one (1) year of the finality of the ruling holding the previous conviction to be invalid; and
-3- (4) It appears that the facts u nderly ing the claim , if true, wo uld establish by clea r and c onvinc ing evid ence that the petition er is entitled to have the conviction set aside or the sentence reduced.
Tenn. C ode Ann . § 40-30-217 (a)(1)-(4) (1997).
In its order denying the Defendant’s second petition for post-conviction
relief (originally filed as a motion to reopen the petition for post-conviction relief),
the trial court po inted out th at in supp ort of his argument, the Defendant relied
upon the opinio n of this Cour t in State v. Hill, No. 01C01-9508-CC-00267, 1996
W L 346941 (Tenn. Crim. A pp., Nas hville, Jan. 6, 1 997), rev’d, 954 S.W.2d 725
(Tenn. 1997). The Hill case was pending before our supreme court at the time
the Defendant filed his motion to reopen his post-conviction petition, and the
holding of this Court in Hill was subsequently reversed by the Tennessee
Supreme Court. See id. The trial court stated , “This Court overruled the motion
[to reopen po st-conviction proceedings] on October 14 th , but upon
reconsideration, since the Hill case was pending in the Tennessee Supreme
Court, this Court granted the motion to re-open the petition.” Neither the holding
of this Court nor the holding of the Tennessee Supreme Court in Hill established
“a cons titutiona l right that was n ot recog nized as existing at the time of trial.”
Tenn. Code Ann. § 4 0-30-21 7(a)(1) (19 97); see State v. Hill, No. 01C01-9508-
CC-00267, 1996 WL 346941 (Tenn. Crim. App., N ashville, Ja n. 6, 1997 ), rev’d,
954 S.W.2d 725 (Tenn. 1997). Nor does the Defendant enunciate any other v alid
reason , as enum erated in Tenn essee Code Annota ted § 40 -30-217 , to support
the filing of his motion. Tenn. Code Ann. § 40-30-217(a)(1)-(4) (1997 ). We
therefore conclude that the trial judge erred by granting the Defendant’s motion
to reopen his post-conviction petition.
-4- Furthermore, if the motion to reopen is treated as a new post-conviction
petition, it is barred under Tennessee Code A nnotated § 40-30-202, which
provides:
(a) Except as provided in subsections (b) and (c), a person in custody under a sentence of a court of this state must petition for post-conviction relief under this part within one (1) ye ar of the da te of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of such petition shall be barred. The statute of limitations shall not be tolled for any reason, including the tolling or saving provision otherwise availab le at law or eq uity. Time is of the essen ce of the rig ht to file a petition for post-conviction relief or mo tion to reopen established by this chapter, and the one-year limitations period is an element of the right to file such an ac tion and is a condition upon its exercise. Except as specifically provided in subsections (b) and (c), the right to file a petition for post-conviction relief or a motion to reopen under this chapter shall be extinguished upon the expiration of the limitations period. (b) No court sh all have jurisdiction to cons ider a petition filed after such time unless: (1) The claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is req uired. Su ch petition must be filed within one (1) year of the ruling of the high est state appe llate court or the United States supreme court establishing a constitutional right that was not recog nized as exis ting at th e time of trial; (2) The claim in the pe tition is b ased upon new s cientific evidence establishing that such petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or (3) The claim asse rted in th e petitio n seeks relief from a sentence that was enhanced because of a previous conviction and such convic tion in th e cas e in wh ich the claim is asserted was not a guilty plea w ith an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the petition must be filed within one (1) year of the finality of the ruling holding the previous conviction to be invalid. (c) This part contemplates the filing of only one (1) petition for post-conviction relief. In no event may more than one (1) petition for post-conviction relief be filed attacking a single judgment. If a prior petition has been filed which w as reso lved on th e merits by a court of competent jurisdiction, any second or subsequent petition shall be sum marily dism issed . A petitio ner may move to reopen a post- convic tion proceeding that has been concluded, under the limited circumstances set out in § 40-30-217.
-5- Id. § 40-30-20 2 (emph asis added ).
The new Post-Conviction Procedure Act, cited in part above , gover ns this
petition and all petitions and motions to reopen petitions for post-conviction relief
filed after May 10, 199 5. Id. Relying on the new act, we conclude that the trial
judge erred in treating the Defendant’s motion to reopen his petition as a new
post-conviction petition. A second petition for post-conviction re lief is clearly
barred by the new act, and the act emphasizes that any such second petition
“shall be summ arily dismissed.” Id. § 40-30-202(c). Although we conclude that
the trial court erred by treating the Defendant’s motion to reopen as a second
post-conviction petition, thereby entertainin g a secon d post-conviction
procee ding, we concu r in the trial cou rt’s denial of p ost-con viction relief.
Accord ingly, we affirm the trial cour t’s denial of p ost-con viction relief.
____________________________________ DAVID H. WELLES, JUDGE
-6- CONCUR:
___________________________________ GARY R. WADE, PRESIDING JUDGE
___________________________________ JOE G. RILEY, JUDGE
-7-