IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
OCTOBER 1997 SESSION
December 12, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
DANNY GARRETT, * C.C.A. # 03C01-9603-CR-00111
Appellant, * KNOX COUNTY
VS. * Hon. Ray L. Jenkins, Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For Appellant: For Appellee:
Danny Garrett, Pro Se John Knox Walkup
# 123195 Attorney General and Reporter
Northeast Correction Center
P.O. Box 5000 Timothy F. Behan
Mountain City, TN 37683 Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
Randall E. Nichols
District Attorney General
City-County Building
Knoxville, TN 37902
OPINION FILED:______________________
AFFIRMED
GARY R. WADE, JUDGE
OPINION
The defendant, Danny Garrett, appeals the trial court's denial of post-
conviction relief. The single issue presented for review is whether the petition was
barred by the statute of limitations.
We affirm the judgment of the trial court.
On October 5, 1987, the petitioner entered pleas of guilt to armed
robbery and assault with intent to commit murder. The trial court imposed a Range
I, fifteen-year sentence for each charge. There was no appeal. On March 4, 1994,
the petitioner received a sentence in federal court for possession of a firearm; his
1987 sentences were used to enhance the length of sentence. Two months later,
the petitioner filed his first petition for post-conviction relief. The trial court
dismissed the petition as untimely filed. See Tenn. Code Ann. § 40-30-102
(repealed 1995). This court affirmed on direct appeal. Danny E. Garrett v. State,
No. 03C01-9411-CR-00429 (Tenn. Crim. App., at Knoxville, July 25, 1995).
This petition, the petitioner's second, was filed on October 25, 1995.
The trial court dismissed the petition on the basis that it was barred by the statute of
the limitations. In this appeal, the petitioner argues that his constitutional rights to
due process preclude the statute of limitations as a defense. We disagree.
In Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992), our supreme
court held that in certain situations application of the statute of limitations in a post-
conviction proceeding would violate due process. In determining whether there has
been a violation of due process, the essential question is whether the time period
allowed by law provides petitioner a fair and reasonable opportunity to file suit. Id.
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In Burford, the petitioner could not file within the three-year limitation absent a
determination on his prior post-conviction petition. Our supreme court ruled that Mr.
Burford was "caught in a procedural trap and unable to initiate litigation ... despite
the approach of the three-year limitation." Id. There was no such trap here.
In Sands v. State, 903 S.W.2d 297 (Tenn. 1995), our supreme court
further defined how to apply the Burford test. Courts must
(1) determine when the limitations period would normally
have begun to run; (2) determine whether the grounds for
relief actually arose after the limitations period would
normally have commenced; and (3) if the grounds are
"later arising," determine if, under the facts of the case, a
strict application of the limitations period would effectively
deny the petitioner a reasonable opportunity to present
the claim. In making this final determination, courts
should carefully weigh the petitioner's liberty interest in
"collaterally attacking constitutional violations occurring
during the conviction process," against the state's
interest in preventing the litigation of "stale and
fraudulent claims."
Sands, 903 S.W.2d at 301 (citations omitted) (quoting Burford, 845 S.W.2d at 207,
208).
By the use of these guidelines, we have determined that the statute of
limitations would have begun to run on October 5, 1987. Essentially, the petitioner
argues that his pleas were not knowingly and voluntarily entered. While that would
have been a basis for post-conviction relief, if established by the proof, those
grounds were available well before the limitations period commenced. Thus, the
petitioner's claims fail to meet the second requirement of Sands.
Recently, our supreme court ruled that the 1995 Post-Conviction
Procedure Act, which reduced the statute of limitations to a period of one year, did
not revive any action which had been barred by the previous statute of limitations.
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See Arnold Carter v. State, ____ S.W.2d ____, No. 03-S-01-9612-CR-00117, slip
op. at 6 (Tenn., at Knoxville, Sept. 8, 1997). Thus, any argument that the new Act
allowed a one-year opportunity for new filings lacks merit. See Tenn. Code Ann.
§ 40-30-202.
Accordingly, the judgment is affirmed.
________________________________
Gary R. Wade, Judge
CONCUR:
_____________________________
David H. Welles, Judge
_____________________________
Jerry L. Smith, Judge
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