IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
ANDREW EWING v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. P-23639 Carolyn W. Blackett, Judge
No. W2004-03007-CCA-R3-PC - Filed May 24, 2006
The Petitioner, Andrew Ewing, appeals the trial court's denial of his petition for post-
conviction relief. The State has filed a motion requesting that this Court affirm the trial court's
denial of relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. Because the petition
for post-conviction relief is barred by the statute of limitations, we grant the State's motion and
affirm the judgment of the lower court.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals
ALAN E. GLENN , J., delivered the opinion of the court, in which DAVID G. HAYES AND J.C. MCLIN ,
JJ. joined.
Robert B. Gaia, Memphis, Tennessee, for the appellant, Andrew Ewing.
Paul G. Summers, Attorney General & Reporter; Sophia S. Lee, Assistant Attorney General, for the
appellee, the State of Tennessee.
MEMORANDUM OPINION
In December 1995, a Shelby County jury found the Petitioner, Andrew Ewing, guilty of first
degree murder and aggravated burglary. At a subsequent sentencing hearing, Petitioner Ewing was
sentenced to life in prison. On direct appeal to this Court, the Petitioner’s convictions and sentences
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were affirmed. State v. Andrew Ewing, No. 02C01-9604-CR-00119, 1997 WL 686256, at *1-2
(Tenn. Crim. App., at Jackson, Nov. 5, 1997), perm. to appeal denied, (Tenn. Jun. 28, 1999).
A petition for post-conviction relief was filed on July 10, 2000. As basis for relief, the
Petitioner alleged that trial counsel was ineffective. The affidavit attached to the petition was signed
by the Petitioner on July 3, 2000. By order entered August 25, 2000, the trial court appointed
private counsel to represent Petitioner in the post-conviction proceedings. Appointed counsel
subsequently filed an amended petition. On May 30, 2001, the trial court granted appointed
counsel’s motion to withdraw from further representation of the Petitioner in the post-conviction
matter. Substitute counsel was then appointed. A hearing was held on the petition on October 4,
2002, and was taken under advisement by the trial court. On November 22, 2004, the trial court
entered an order dismissing the petition as time-barred. A notice of appeal document was timely
filed on December 17, 2004.
The State has filed a motion requesting summary affirmance by this Court by memorandum
opinion. See Tenn. Ct. Crim. App. R. 20. The State maintains that the petition is barred by the one-
year statute of limitations. In his initial brief, the Petitioner maintains that his petition should not
be dismissed on this basis as the State failed to rely upon a statute of limitations argument at the trial
level. In this regard, it appears that the Petitioner contends that the application of the one-year statute
of limitations to his petition would violate his due process rights.
Pursuant to Tennessee Code Annotated section 40-30-102(a), a person in custody under a
sentence of a court of this state must petition for post-conviction relief within one 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 year of the date on which the judgment becomes final. The statute emphasizes that
"[t]ime is of the essence of the right to file a petition for post-conviction relief or motion to reopen
established by this chapter, and the one-year limitations period is an element of the right to file such
an action and is a condition upon its exercise." T.C.A. § 40-30-102(a).
This Court has previously held, in Church v. State, 987 S.W.2d 855, 857 (Tenn. Crim. App.
1998), that the 1995 Post-Conviction Procedure Act permits the trial court to dismiss a petition based
upon a procedural bar without the issue first being raised by the State. Additionally, section 40-30-
102(b), Tennessee Code Annotated, provides that the trial court does not have jurisdiction to
consider a petition for post-conviction relief if it was filed outside the one-year statute of limitations
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 required; (2) the claim in the petition is based upon new scientific evidence
establishing that such petitioner is actually innocent of the offense or offenses for which the
petitioner was convicted; or (3) the claim in the petition 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 with an agreed sentence, and the previous conviction has subsequently
been held to be invalid. In the present case, this Court affirmed the Petitioner’s conviction on
November 5, 1997, and the Tennessee Supreme Court denied the Petitioner’s application for
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permission to appeal on June 28, 1999. Thus, the Petitioner had one year in which to pursue a post-
conviction remedy. The present petition was not filed until July 10, 2000, outside the statute of
limitations. The Petitioner has failed to show that any of his claims fall within one of the exceptions
set forth in T.C.A. § 40-30-102.
For the reasons stated herein, we conclude that the trial court did not err in summarily
dismissing the petition for post-conviction relief as time-barred. Accordingly, it is ordered that the
State’s motion is granted. The judgment of the trial court is affirmed in accordance with Rule 20,
Rules of the Court of Criminal Appeals.
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ALAN E. GLENN, JUDGE
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