William Lewis Howell v. State of Tennessee

• Court: Court of Criminal Appeals of Tennessee
• Decided: April 6, 1999
• Docket: 03C01-9806-CR-00200
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED WILLIAM LEWIS HOWELL, * April 6, 1999

Appellant, * Cecil Crowson, Jr. C.C.A. # 03C01-9806-CR-00200 Appellate C ourt Clerk VS. * KNOX COUNTY

STATE OF TENNESSEE, *

Appellee. *

OPINION

The pro se petitioner, William Lewis Howell, appeals the summary

dismissal of his petition for post-conviction relief. The issue presented for review is

whether the petition is barred by the statute of limitations. We affirm the dismissal

pursuant to Rule 20, Tenn. Ct. Crim. App.

In 1985, the petitioner pled guilty to joyriding and received an eleven

month, twenty-nine day sentence. Thirteen years later, the petitioner filed this

petition for post-conviction relief, alleging an unknowing guilty plea and the

ineffective assistance of counsel. The trial court dismissed the petition without a

hearing or the appointment of counsel. In this appeal of right, the petitioner

acknowledges that his petition was filed untimely but claims as an excuse that his

trial counsel had mistakenly advised that he could not file a petition because no

record was made of the plea proceedings.

Under the Post-Conviction Procedure Act of 1995, a petition must be

filed "within one (1) year of the date 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." Tenn. Code Ann. § 40-30-202(a). The statute provides that the limitations

period "shall not be tolled for any reason, including any tolling or saving provision otherwise available at law or equity." Id. Thus, this petition, filed well beyond the

one year allowed, is barred by the statute of limitations. Id.

The only exceptions to the limitations period are when the claim is

based upon a new rule of constitutional law applicable to the petitioner's case, the

claim is based upon new scientific evidence showing innocence, or the claim is

based upon an enhanced sentence that was enhanced because of convictions that

have subsequently been found to be illegal. Tenn. Code Ann. § 40-30-202(b). The

petitioner's claims of ineffective assistance of counsel and an unknowing guilty plea

are not based on new rules of constitutional law. See Strickland v. Washington, 466

U.S. 668 (1984); Boykin v. Alabama, 395 U.S. 238 (1969). The allegations in the

petition clearly do not satisfy any exception to the statute of limitations.

Moreover, the petitioner's claim that he did not file a timely petition

because his attorney advised him he could not file one does not afford the petitioner

any relief. This court has previously ruled that failure to comply with the statute of

limitations, even when based upon erroneous advice from an attorney, does not

provide an exception to the statute of limitations. State v. Phillips, 904 S.W.2d 123,

124 (Tenn. Crim. App. 1995).

Accordingly, the judgment of the trial court is affirmed. Costs shall be

taxed to the state.

_________________________________ Gary R. Wade, Presiding Judge

CONCUR:

________________________________ James Curwood W itt, Jr., Judge

__________________________________ Norma McGee Ogle, Judge