FILED
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
May 6, 1999
FEBRUARY 1999 SESSION
Cecil W. Crowson
Appellate Court Clerk
PHILLIP WAYNE KELLEY, )
)
Appellant, ) C.C.A. No. 01C01-9804-CC-00156
)
vs. ) Giles County
)
STATE OF TENNESSEE, ) Hon. Robert L. Jones, Judge
)
Appellee. ) (Post-Conviction)
)
FOR THE APPELLANT: FOR THE APPELLEE:
JOEY PENROD (at hearing and on appeal) JOHN KNOX WALKUP
Assistant District Public Defender Attorney General & Reporter
809 S. Main St., Ste. 200
Columbia, TN 38401 TIM BEHAN
Assistant Attorney General
C. MICHAEL ROBBINS (on appeal) 425 Fifth Ave. N., 2d Floor
Attorney at Law Nashville, TN 37243-0493
46 N. Third St., Ste. 719
Memphis, TN 38103 MIKE BOTTOMS
District Attorney General
ROBERT C. SANDERS
Asst. District Attorney General
P. O. Box 1619
Columbia, TN 38401
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The petitioner, Phillip Wayne Kelley, appeals from the trial court's
dismissal of his claim for post-conviction relief. Kelley is presently serving three
consecutive life terms plus 25 years in the Department of Correction for his
convictions of three counts of first degree murder and one count of assault with
intent to commit murder. State v. Kelley, 683 S.W.2d 1, 2 (Tenn. Crim. App. 1984).
The trial court dismissed his post-conviction petition as untimely and substantively
without merit, and Kelley appeals from that determination. Following a review of the
record, the briefs of the parties, and the applicable law, we affirm the lower court's
dismissal.
The petitioner's conviction became final following the Tennessee
Supreme Court's denial of permissive appeal on December 17, 1984. See id. at 1.
On September 11, 1985, Kelley filed a motion with the trial court clerk to obtain his
trial transcript. By letter dated September 17, 1985, the trial court clerk advised the
petitioner that the original transcript had been filed with the court of criminal
appeals. The court clerk suggested that the petitioner contact his trial attorney
about obtaining a copy of the transcript.
Thereafter, according to the petitioner's testimony, he contacted his
trial attorney. The attorney indicated he would provide the transcript upon a family
member's execution of "something" the petitioner did not identify. The petitioner
further testified that his mother was the only family member he had, and she was
without transportation to his attorney's office.
On July 28, 1991, the petitioner filed a letter again seeking a copy of
the transcript and alleging that he was seeking post-conviction relief. It appears that
this petition was amended through counsel on January 23, 1998.
2
Kelley's statute of limitations period commenced on July 1, 1986 and
expired three years later. Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995);
Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). Kelley claims his
1985 motion requesting a copy of the transcript tolled the statute of limitations. That
motion did not contain any allegations constituting a basis for post-conviction relief.
Kelley testified that the purpose of the motion was to get the transcript so that he
could get some help, presumably from someone in prison, in filing a post-conviction
petition. He admitted that he knew that what he filed was not a post-conviction
petition. Under these circumstances, the trial court correctly determined that no
timely post-conviction action had been commenced. Accord Jackie R. Reynolds v.
State, No. 328 (Tenn. Crim. App., Knoxville, May 9, 1991).
The remaining question raised by the petitioner is whether the
application of the post-conviction statute of limitations deprived him of due process.
In this regard, Kelley relies on Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)
and Sands v. State, 903 S.W.2d 297, 298 (Tenn. 1995). In Burford, our supreme
court recognized that "under the circumstances of a particular case, application of
the statute [of limitations] may not afford a reasonable opportunity to have the
claimed issue heard and decided." Burford, 845 S.W.2d at 208. Burford was a
unique case in which the petitioner was caught in a procedural trap in which he first
had to successfully challenge convictions in a post-conviction proceeding in one
county in order to have a justiciable claim for relief in post-conviction proceedings
in another county. Id. He was caught in a quandary because the approach of the
statute of limitations applicable to the latter claim was looming prior to a
determination of the former claim. Id. The supreme court found the application of
the statute of limitations to the latter claim violative of due process in that limited
circumstance and allowed the Burford petitioner to maintain his claim
notwithstanding the statute of limitations. See id. at 209-10.
3
Similarly, in Sands, the petitioner alleged that the jury instructions
used in his 1977 trial were found unconstitutional by the United States Supreme
Court in 1979. Sands, 903 S.W.2d at 298. Sands initiated his post-conviction
claim in 1990,1 well outside the three year statute of limitations. See id. In passing
on the claim, the supreme court concluded that the basic rule of Burford was that
"due process prohibits the strict application of the post-conviction statute of
limitations to bar a petitioner's claim when the grounds for relief, whether legal or
factual, arise . . . after the point at which the limitations period would normally have
begun to run." Id. at 301.
In the case before the court, the petitioner concedes that his claim is
not later arising such that a strict reading of Burford and Sands would provide relief
from the statute of limitations. He argues, however, that due process principles
should be more broadly applied than a narrow reading of Burford and Sands would
allow. To that end, he urges that the relevant inquiry should be whether the
petitioner, through no fault of his own, has been unable to comply with the statute
of limitations.
The weakness of this argument is that this court has narrowly applied
the principles of Burford and Sands. We have rejected claims that a petitioner's
ignorance of the statute of limitations should toll its application. See, e.g., Brown
v. State, 928 S.W.2d 453, 456 (Tenn. Crim. App. 1996). Likewise, we have said
that illiteracy is not a basis for tolling. See, e.g., Bernard Nelson v. State, No.
01C01-9212-CC-00375, slip op. at 4 (Tenn. Crim. App., Nashville, Nov. 18, 1993).
We have held that lack of access to legal materials due to out-of-state incarceration
and even reliance on erroneous legal advice does not toll the statute. Sands, 903
1
Sands had filed two earlier post-conviction actions.
4
S.W.2d at 300-01; see also State v. Phillips, 904 S.W.2d 123, 123-24 (Tenn. Crim.
App. 1995) (reliance on legal advice). Most damning for the petitioner at bar,
however, is our ruling that a petitioner's inability to obtain his trial transcript does not
toll the statute of limitations. State v. Jimmy Sills, No. 03C01-9410-CR-00370, slip
op. at 6 (Tenn. Crim. App., Knoxville, May 10, 1995), perm. app. denied (Tenn.
1995).
Thus, we find no due process deprivation on the facts of this case.
The judgment of the trial court is therefore affirmed.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
DAVID G. HAYES, JUDGE
_______________________________
JOHN EVERETT WILLIAMS, JUDGE
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