IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JANUARY 1998 SESSION
LEWIS ANDERSON, )
)
APPELLANT, )
) No. 02-C-01-9702-CR-00078
)
) Shelby County
v. )
) Fred W. Axley, Judge
)
) (Post-Conviction Relief)
STATE OF TENNESSEE, )
)
APPELLEE. )
FOR THE APPELLANT: FOR THE APPELLEE:
Pamela Drewery John Knox Walkup
Attorney At Law Attorney General & Reporter
1008 West Forest 500 Charlotte Avenue
Jackson, TN 38301 Nashville, TN 37243-0497
Clinton J. Morgan
Counsel for the State
Cordell Hull Building, Second Floor
425 Fifth Avenue, North
Nashville, TN 37243-0493
William L. Gibbons
District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
Rhea Cliff
Assistant District Attorney General
201 Poplar Avenue, Suite 3-01
Memphis, TN 38103
OPINION FILED:_____________________________
APPEAL DISMISSED
Joe B. Jones, Presiding Judge
OPINION
The appellant, Lewis Anderson (petitioner), appeals as of right from a judgment of
the trial court summarily dismissing his second action for post-conviction relief. The trial
court found that the petitioner’s action was barred by the statute of limitations. The
petitioner contends in this court that the trial court committed error by dismissing his initial
action without an evidentiary hearing. After a thorough review of the record, the briefs
submitted by the parties, and the law governing the issue presented for review, it is the
opinion of this court that the appeal of the petitioner must be dismissed. Since the
petitioner was convicted following the effective date of the Post-Conviction Procedure Act
legislation in 1995, he is limited to one action for post-conviction relief. Consequently, he
was not entitled to maintain this action. Moreover, this court cannot grant the petitioner
appellate relief in an action he is not permitted to maintain. The trial court should have
dismissed the action on this ground -- not the statute of limitations.
The petitioner entered guilty pleas to two counts of second degree murder. He was
sentenced to serve forty (40) years in the Department of Correction as a Range II multiple
offender for each offense. The judgment in each case was entered on June 23, 1995. He
filed his first action for post-conviction relief on April 18, 1996. An order was entered on
May 16, 1996, summarily dismissing the action. This, the second action, was commenced
on December 9, 1996. The trial court entered an order on January 10, 1997 dismissing
this action on the ground it was barred by the statute of limitations.
The petitioner may not resurrect the first petition through this action. He made no
effort to appeal the first action after it was summarily dismissed. Thus, the judgment
became final thirty days after the entry of the judgment.
The petitioner admits he entered the guilty pleas after May 10, 1995, the effective
date of the 1995 revisions to the Post-Conviction Procedure Act. As a result, the petitioner
was entitled to maintain only one post-conviction action. Tenn. Code Ann. § 40-30-202(c).
Therefore, he was not entitled to file this second action. Once the judgment in the first
action became final, the petitioner’s remedy was to file a motion to reopen the first action.
Tenn. Code Ann. § 40-30-217.
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If we consider the petition in the present action a motion to reopen, the petition does
not state sufficient grounds to support any of the reasons which justify the reopening of a
prior post-conviction action.
____________________________________________
JOE B. JONES, PRESIDING JUDGE
CONCUR:
_____________________________________
PAUL G. SUMMERS, JUDGE
_____________________________________
DAVID G. HAYES, JUDGE
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