Wilson v. State ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
MARCH 1997 SESSION
FILED
May 1, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
JIMMY WAYNE WILSON, ) C.C.A. No. 03C01-9602-CC-00085
) SULLIVAN COUNTY
Appellant, )
) Hon. Arden L. Hill, Judge
VS. )
) (POST-CONVICTION RELIEF)
STATE OF TENNESSEE, ) Nos. S37141 and S37183 BELOW
)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
JIMMY WAYNE WILSON JOHN KNOX WALKUP
Pro Se Attorney General and Reporter
Post Office Box 5000
Mountain City, TN 37683 WILLIAM DAVID BRIDGERS
Assistant Attorney General
450 James Robertson Parkway
Nashville, TN 37243-0493
H. GREELEY WELLS, JR.
District Attorney General
JOSEPH EUGENE PERRIN
Assistant District Attorney General
Post Office Box 526
Blountville, TN 37617
OPINION FILED:__________________
AFFIRMED
CORNELIA A. CLARK,
Special Judge
OPINION
1
Appellant appeals the dismissal of his petition for post-conviction relief based
on the running of the statute of limitations and raises two issues for review: (1)
whether the three-year statute of limitations has been tolled under Burford v. State
based on the recent establishment of a new constitutional right and (2) whether
Judge Arden L. Hill was authorized to preside over the evidentiary hearing and to
dismiss the petition. We affirm the judgment of the trial court.
I.
On November 23, 1994, petitioner filed the two post-conviction petitions now
before the court. According to the petitions, the appellant was convicted of assault
with intent to commit murder in May 1971, possession of stolen property in July
1971, auto burglary in 1979, perjury in November 1980, and rape in October 1984.
The auto burglary and perjury convictions were then used to enhance his rape
conviction to habitual criminal status. Petitioner received a sentence of life
imprisonment for the rape conviction. That conviction and sentence were upheld
on appeal. State v. Jimmy Wayne Wilson, No. 717 (Tenn. Crim. App., Knoxville,
November 14, 1986).
Between 1984 and 1994 petitioner filed several post-conviction petitions
which have ultimately been adjudicated by this court. See Jimmy Wayne Wilson v.
State, No. 909 (Tenn. Crim. App., Knoxville, May 29, 1991); Jimmy Wayne Wilson
v. State, No. 970 (Tenn. Crim. App., Knoxville, June 12, 1991); Jimmy Wayne
Wilson v. State, No. 03C01-9203-CR-104 (Tenn. Crim. App., Knoxville, December
1, 1992); Jimmy Wayne Wilson v. State, No. 03C01-9406-CR-00228 (Tenn. Crim.
App., Knoxville, December 19, 1994) (Hill, trial judge). This court has already
determined that the three-year statute of limitations has expired as to his claims.
In his two current petitions, the appellant alleges that his “enhanced
punishment of an habitual criminal is invalid because it does not comport with the
2
statutory prerequisites with respect to prior felony convictions”. The appellant cites
Beecham v. United States, 511 U.S. 368, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994),
and argues that the suit is not time barred because Beecham was not available as
a ground for relief until it was decided on May 16, 1994. On appeal, he maintains
that he is entitled to relief from the statute of limitations under Burford v. State, 845
S.W.2d 204 (Tenn. 1992).1
We disagree, for reasons identical to those set forth in Harold V. Smith v.
State, No. 03C01-9506-CR-00168 (Tenn. Crim. App., Knoxville, March 12, 1996).
In Beecham, the United States Supreme Court interpreted 18 U.S.C. §921(a)(20),
the statute dealing with the definition of a “conviction” for purposes of the federal
firearms statute. 114 S.Ct. Id. at 1671. The defendants in that case claimed that
prior federal convictions could not be used against them because their civil rights
had been restored pursuant to state law. The court held as a matter of federal
statutory interpretation that a restoration of civil rights for federal felons must be
pursuant to federal law. Id. Beecham does not announce a new constitutional right
or afford this appellant any relief from the statute of limitations. See also Dewey
Scott Frazier v. State, No. 03C01-9505-CR-00142 (Tenn. Crim. App., Knoxville,
February 8, 1996).
These petitions were clearly barred by the three-year statute of limitations,
and were subject to summary dismissal. See Hardin v. State, 873 S.W.2d 2, 3
(Tenn. Crim. App. 1993).
II.
Petitioner next contends that the dismissal of his post-conviction petition is
invalid because Judge Arden L. Hill was not authorized to preside in Sullivan
1
In Burford the Tennessee Supreme Court created an exception to the
three-year statute of limitations for post-conviction relief. Those petitions based on
constitutional grounds not recognized or not available to petitioners prior to the
running of their limitations period are not barred from being filed.
3
County. He relies on T.C.A. §40-30-103(b). That reliance is misplaced. Effective
April 12, 1993, T.C.A. §40-30-103(b) was amended to provide that “at . . . the trial
proceeding . . . the presiding judge . . . shall assign a judge to hear the petition. The
issue of competency of counsel may be heard by a judge other than the original
hearing judge”. Tenn. Code Ann. §40-30-103(b) (1994 Supp.).2
The judge originally assigned to hear this case was Frank L. Slaughter. By
order filed November 30, 1994, Judge Slaughter recused himself and transferred
the case to Arden L. Hill, who has heard at least one of petitioner’s prior
post-conviction petitions. See Jimmy Wayne Wilson v. State, No. 03C01-9406-CR-
00228 (Tenn. Crim. App., Knoxville, December 19, 1994). Appellant has not
demonstrated that the designation of Judge Hill was invalid under T.C.A.
§§40-30-103(b), 17-2-202, or Directive 92-3 of the Administrative Office of the
Courts.
We affirm the judgment of the trial court dismissing the petition.
__________________________________
CORNELIA A. CLARK
SPECIAL JUDGE
CONCUR:
__________________________________
JOHN H. PEAY
JUDGE
2
Subsequently, this section was repealed by 1995 Tenn. Pub. Act 207,
Section 1, now codified at T.C.A. §40-30-205(b). This section contains virtually
identical language: “at . . . the trial proceeding . . . the presiding judge of the
appropriate court shall assign a judge to hear the petition. The issue of competency
of counsel may be heard by a judge other than the original hearing judge. If a
presiding judge is unable to assign a judge, the chief justice of the Supreme Court
shall designate an appropriate judge to hear the matter”.
4
__________________________________
PAUL G. SUMMERS
JUDGE
5
IN THE COURT OF CRIMINAL APPEALS TENNESSEE AT KNOXVILLE
JIMMY WAYNE WILSON, ) C.C.A. No. 03C01-9602-CC-00085
) SULLIVAN COUNTY
Appellant, )
) Hon. Arden L. Hill, Judge
VS. )
) (POST-CONVICTION RELIEF)
STATE OF TENNESSEE, ) Nos. S37141 and S37183 BELOW
)
Appellee. )
JUDGMENT
Came the appellant, Jimmy Wayne Wilson, by counsel and also came the
attorney general on behalf of the state, and this case was heard on the record on
appeal from the Criminal Court of Sullivan County; and upon consideration thereof,
this court is of the opinion that there is no reversible error in the judgment of the trial
court.
Our opinion is hereby incorporated in this judgment as if set out verbatim.
It is, therefore, ordered and adjudged by this court that the judgment of the
trial court is AFFIRMED, and the case is remanded to the Criminal Court of Sullivan
County for execution of the judgment of that court and for collection of costs
accrued below.
It appears that the appellant is indigent. Costs of this appeal will be paid by
the State of Tennessee.
PER CURIAM
John H. Peay, Judge
Paul G. Summers, Judge
Cornelia A. Clark, Special Judge