IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
AUGUST SESSION, 1997
MONROE E. DAVIS, )
) No. 02C01-9608-CR-00291
Appellant )
) SHELBY COUNTY
vs. )
) Hon. Arthur T. Bennett, Judge
STATE OF TENNESSEE, )
Appellee
)
)
(Post-Conviction)
FILED
August 19, 1997
For the Appellant: For the Appellee: Cecil Crowson, Jr.
Appellate C ourt Clerk
MICHAEL E. SCHOLL CHARLES W. BURSON
212 Adams Avenue Attorney General and Reporter
Memphis, TN 38103
KENNETH W. RUCKER
Assistant Attorney General
Criminal Justice Division
450 James Robertson Parkway
Nashville, TN 37243-0493
WILLIAM GIBBONS
District Attorney General
RHEA CLIFT
Asst. District Attorney General
Criminal Justice Complex
Suite 301
201 Poplar Street
Memphis, TN 38103
OPINION FILED:
AFFIRMED PURSUANT TO RULE 20
David G. Hayes
Judge
OPINION
The appellant, Monroe E. Davis, appeals the Shelby County Criminal
Court's dismissal of his petition for post-conviction relief. On October 6, 1989,
the appellant pled guilty to one count of second degree murder and one count of
petit larceny. Pursuant to a plea agreement, the appellant was sentenced, as a
range I offender, to twenty years for the murder conviction and to one year for
the petit larceny conviction to be served concurrently in the Department of
Correction. On April 4, 1995, he filed a petition for post-conviction relief
asserting a breach of his negotiated plea agreement in that he was denied
release by the Board of Parole after thirty percent of his sentence was served.
The trial court dismissed the petition as being barred by the three year statute of
limitations. See Tenn. Code Ann. § 40-30-102(1990). In this appeal, the
appellant contends that, "due to the motion to recuse and [the] transfer of his
petition to a new court without proper notice," the statute of limitations should not
bar his petition.1
The record supports the trial court's finding that the petition is time-barred.
The limitations period on the appellant's claims began to run on November 6,
1989. See Tenn. Code Ann. § 40-30-102 (repealed 1995). Thus, the appellant
had three years from this date in which to file a cognizable claim for post-
conviction relief.2 Tenn. Code Ann. § 40-30-102. The petition in the instant case
was filed on April 4, 1995, well past the three year statute of limitations; thus, the
1
Specifically, the appellant contends that the trial court's order granting its recusal
prevented him from knowing in which court an amendm ent to his petition should be filed. The
app ellant filed his po st-conviction petition on April 4, 1995 . Sub stituted cou nse l was app ointed to
represent the appellant in this matter on January 10, 1996. On January 12, 1996, a motion was
filed req ues ting tha t the trial judge b e rec use d. On M arch 7, 1996 , the m otion w as g rante d. First,
the appe llant's original petition was filed o utside the three yea r period. T he a ppe llant's m otion to
recuse was filed approximately nine months after his post-conviction petition was filed. Moreover,
lack of know ledge do es n ot excus e late filings . Sk inner v. State, No. 02C01-9403-CC-00039
(Tenn . Crim . App . at Jackson , July 13, 1994), perm. to appeal denied, (Tenn. Oct. 10, 1994)
(citing W illis v. State, No. 01C0 1-9211-C R-003 59 (Te nn. Crim . App. at Nashville, Oct. 21, 1993),
perm. to appeal denied, (Te nn. M ar. 7, 1994 )). Th is claim is without m erit.
2
The appellant had until Novem ber 6, 1992, to file a petition for post-con viction relief.
2
appellant is "barred" from seeking post-conviction relief.
Notwithstanding the fact that the petition is time-barred, the appellant fails
to state a constitutionally cognizable claim for relief under the Post-Conviction
Procedure Act. See Tenn. Code Ann. § 40-30-105 (1990). The release
eligibility date is the earliest date an inmate convicted of a felony is eligible for
parole and is dependant upon numerous factors. No constitutional right exists to
be released at the earliest release eligibility date. See Depew v. State, No.
03C01-9504-CR-00116 (Tenn. Crim. App. at Knoxville, Aug. 21, 1995).
Pursuant to Rule 20, Rules of the Court of Criminal Appeals, we affirm the
judgment of the trial court.
____________________________________
DAVID G. HAYES, Judge
CONCUR:
______________________________
JERRY L. SMITH, Judge
_____________________________
THOMAS T. WOODALL, Judge
3