Walker v. State

• Court: Court of Criminal Appeals of Tennessee
• Decided: May 20, 1998
• Docket: 03C01-9612-CR-00482
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED MARCH 1998 SESSION May 20, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

THOMAS L. WALKER, ) ) C.C.A. NO. 03C01-9612-CR-00482 Appellant, ) ) KNOX COUNTY VS. ) ) HON. RAY L. JENKINS, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

ROBERT R. CARL, II JOHN KNOX WALKUP Vowell & Carl Attorney General & Reporter 6312 Kingston Pike, Suite 111 Knoxville, TN 37919 SANDY C. PATRICK (On Appeal) Asst. Attorney General John Sevier Bldg. KEITH LEIBERMAN 425 Fifth Ave., North 400 E. Caldwell Ave. Nashville, TN 37243-0493 Knoxville, TN 37917 (At Trial) RANDALL E. NICHOLS District Attorney General

ZANE M. SCARLETT Asst. District Attorney General City-County Bldg. Knoxville, TN 37902

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY, Judge OPINION

In June 1985, the petitioner pled guilty to several burglary charges in Knox

County. He did not seek direct review of his sentence. Six years later, in September

1991, he filed a pro se petition for post-conviction relief, alleging that his guilty pleas to

the burglary charges were not voluntarily, intelligently, and knowingly entered. Over the

next few years, a series of different attorneys, including the Knox County Public

Defender, were appointed to the petitioner’s case, but none filed any pleadings except

motions to withdraw. Eventually, in November 1994, the trial court dismissed the petition

for post-conviction relief without an evidentiary hearing. Two years later, the petitioner

filed a motion with this Court seeking delayed appeal of the dismissal of his petition,

which we granted. However, upon review of the record, we affirm the trial court’s

dismissal of his petition for post-conviction relief.

The petitioner pled guilty in 1985, prior to the July 1, 1986, effective date of T.C.A.

§ 40-30-102 (repealed and replaced by § 40-30-202 in 1995). As such, the petitioner had

until July 1, 1989, to file a petition for post-conviction relief. Abston v. State, 749 S.W.2d

487, 488 (Tenn. Crim. App. 1988). In this case, the petitioner filed his petition for post-

conviction relief in September 1991, well after the statute of limitations had run. Thus,

his petition was barred by the statute of limitations and therefore was properly dismissed.

On appeal, the petitioner urges that the statute of limitations should be

tolled in his case because he was denied a reasonable opportunity to present his petition

for post-conviction relief. See Burford v. State, 845 S.W.2d 204 (Tenn. 1992). As

support for this argument, the petitioner contends that he first sought post-conviction

relief in August 1985, but the District Attorney General’s office “forced” him to withdraw

this petition two years later by improperly threatening to prosecute him as a habitual

criminal and seek an enhanced sentence. We reject this argument because none of

2 these factual allegations find support in the instant record.

The only allegations contained in the September 1991 petition, which is the

only petition at issue in this appeal, concern whether the petitioner voluntarily,

intelligently, and knowingly entered his guilty pleas in 1985. The petitioner has never

alleged on the record in this case any entitlement to post-conviction relief on the basis

that the District Attorney General’s office “forced” him to withdraw a 1985 petition for post-

conviction relief or that the District Attorney General’s office otherwise acted improperly.

Moreover, nothing in the record suggests that the petitioner should be afforded an

exception to the statute of limitations under the standard enunciated in Burford. Even

assuming that the District Attorney General “forced” the petitioner to withdraw a prior

petition, nothing explains why the petitioner chose to wait several years---after the statute

of limitations had already run---to file another petition. See Passarella v. State, 891

S.W.2d 619, 626 (Tenn. Crim. App. 1994)(stating that “Burford cannot be invoked by a

petitioner who has simply slept on his right to seek post-conviction relief”). Accordingly,

on the basis of the record before us, we find that the petitioner untimely filed his petition

for post-conviction relief, and as such, his petition was properly dismissed. The dismissal

of the petition is affirmed.

_________________________________ JOHN H. PEAY, Judge

CONCUR:

______________________________ PAUL G. SUMMERS, Judge

______________________________ CORNELIA A. CLARK, Special Judge