Jones v. State , 891 S.W.2d 228 ( 1994 )

OPINION

PEAY, Judge.

The petitioner, Jessie L. Jones, appeals as of right from the dismissal of his second petition for post-conviction relief. He specifically alleges that the dismissal was in error because the statute of limitations was inapplicable due to the establishment of a new constitutional rule. Although we conclude that the petitioner’s issue was neither waived nor barred by the statute of limitations, we have further determined that the record shows that the petitioner is not entitled to post-conviction relief.

The petitioner was convicted of armed robbery and aggravated assault with a firearm and was found to be an habitual criminal on January 30, 1985. At the habitual criminal phase of the trial, the trial court instructed the jury as follows:

Members of the jury, records of prior convictions of the defendant are evidence which you may consider, but only as proof that he is in fact an habitual criminal as that term has been defined above. A judgment of conviction of any person under the same name as that of the defendant is prima facie evidence that the identity of such person is the same as the defendant. Prima facie in law means that it is to be taken as an established fact unless and until it is overturned or rebutted by proof.

The petitioner’s convictions were affirmed by this Court on January 30, 1987.¹ Application for Permission to Appeal was denied by the Supreme Court on April 13, 1987. Subsequently, the petitioner, through counsel, filed an amended petition for post-conviction relief on April 30, 1990. This petition was dismissed without an evidentiary hearing on August 22, 1990.

The present petition was filed pro se on November 17, 1992. Counsel was appointed, but the record indicates that no amended petition was filed. The State filed a motion to dismiss on December 11, 1992, and the trial court granted the motion on the grounds that the petition was barred by the statute of limitations. The defendant appealed pro se, and this Court appointed counsel.

In his sole issue on appeal the petitioner argues that the statute of limitations for post-conviction relief petitions, pursuant to T.C.A. § 40-30-102,² should not apply in his ease because of a new rule of law set forth in the Supreme Court decision of Lowe v. State, 805 S.W.2d 368 (Tenn.1991). In Lowe, the Court held that although the habitual criminal statute, T.C.A. § 39-1-804 (1982),³ was not unconstitutional per se, the jury charge which was patterned after its language im-permissibly shifted the burden of proof to the defendant in violation of due process requirements. Lowe v. State, 805 S.W.2d at 372. The unconstitutional instruction provided that “a judgment of conviction of any person under the same name as that of the defendant is prima facie evidence that the identity of such person is the same as the defendant.” In addition, the trial court defined the term “prima facie” to mean that evidence “is to be taken as an established fact unless and until it is overturned and rebutted by proof.” Id. at 369.

The petitioner likens his case to that of Burford v. State, 845 S.W.2d 204 (Tenn.1992) in which the persistent offender’s sentence was based on previous convictions that were no longer valid. Our Supreme Court held that because of the procedural trap in which Burford found himself, whereby he would be forced to serve a persistent offender sentence that was enhanced by previous convictions which were no longer valid, the application of the three (3) year statute of limitations to bar consideration of the appeal would deprive Burford of liberty without due process of the law. Burford v. State, 845 S.W.2d at 210. The case was remanded to the trial court for an evidentiary hearing.

The petitioner further cites Meadows v. State, 849 S.W.2d 748, 754 (Tenn.1993) (citing Hellard v. State, 629 S.W.2d 4, 5 (Tenn.1982)), for the proposition that a new state constitutional rule would be retroactively applied to claims for post-conviction relief if the new rule would materially enhance the integrity and reliability of the fact finding process of the trial.

We agree with the petitioner that the Lowe rule materially enhances the integrity and reliability of the fact finding process. In Government of Virgin Islands v. George, 741 F.2d 643, 648 (1984) (citing Specht v. Patterson, 386 U.S. 605, 610, 87 S.Ct. 1209, 1212, 18 L.Ed.2d 326 (1967)), the Third Circuit Court of Appeals found that “procedural due pro-eess protection must inhere in any habitual or dangerous offender proceeding whereby a convicted defendant may be sentenced to a longer term of imprisonment pursuant to a statute that requires additional factfinding by the sentencing judge.” The Lowe court specifically likened Tennessee’s habitual criminal procedure to that addressed in Specht and found that “a fuller extension of due process rights should be made at such a proceeding than is required at a routine sentencing hearing conducted by a judge.” Lowe v. State, 805 S.W.2d at 371.

The State contends that the petitioner has waived any Lowe issue that might have existed by his failure to plead it in his earlier direct appeal or post-conviction petition and that even if not waived, said petition is barred by the statute of limitations. We respectfully disagree.

Though the State argues that the petitioner failed to raise the erroneous jury instruction issue on direct appeal, the record indicates that the petitioner did, in fact, attempt to raise this issue on direct appeal. See Jones, 733 S.W.2d at 523-24. Not ruling on the merits, this Court found that the petitioner had waived this issue by not presenting it in his motion for a new trial.

Petitioner’s first petition for post-conviction relief was filed on April 30, 1990. Although, as noted in Lowe, the issue of shifting the burden of proof in jury instructions regarding habitual criminal violations had been handled several different ways by the Court of Criminal Appeals prior to Lowe, it was not until February 25, 1991, that the Tennessee Supreme Court rendered the Lowe decision. Lowe, 805 S.W.2d at 368. Therefore, the petitioner’s direct appeal and previous petition were dismissed prior to the Lowe decision. Since these direct and collateral attacks predate that decision, we find 'that the petitioner’s Lowe issue has not been waived.

The State also contends that the petitioner’s Lowe issue is barred by the statute of limitations. Again, we do not agree.

T.C.A. § 40-30-102 provides that a prisoner must petition for post-conviction relief within three (3) years of the date of the final action of the highest appellate court to which an appeal is taken. For those convictions prior to July 1, 1986, the limitations period expired on July 1, 1989. Abston v. State, 749 S.W.2d 487 (Tenn.Crim.App.1988).

In Burford, however, the Tennessee Supreme Court, while upholding the constitutionality of the limitations statute, stated that “[ajlthough we have determined that the statute is constitutional, it is possible that under the circumstances of a particular case, application of the statute may not afford a reasonable opportunity to have the claimed issue heard and decided.” Burford, 846 S.W.2d at 208. The Court further stated that “the test is whether the time period provides an applicant a reasonable opportunity to have the claimed issue heard and determined.” Id.

In Burford, the Court balanced the State’s legitimate interest in preventing the litigation of stale or fraudulent claims against a prisoner’s interest in avoiding an excessive sentence that violated his constitutional rights. Burford, 846 S.W.2d at 209 (citing Michel v. Louisiana, 350 U.S. 91, 93, 76 S.Ct. 158, 160, 100 L.Ed. 83 (1955)). As did the Court in Burford, we find that the petitioner’s claim was timely. It was filed within twenty-one (21) months of the Lowe decision. Also, as in Burford, we find that the government’s interest is insufficient to outweigh the petitioner’s interest in reviewing potentially unconstitutional jury instructions which resulted in a life sentence.

Upon finding that this post-conviction petition is not barred, we must further deal with the final issue of whether the petitioner’s claim would have prevailed on its merits. We hold that it would not.

In Loiue, our Supreme Court held that the eiToneous instruction did not warrant post-conviction relief absent a showing of prejudice. Lowe, 805 S.W.2d at 372. As Justice Daughtrey stated in Lowe, and we now hold applicable to the case at bar, “in order to state a ‘colorable claim’ ..., it [is] incumbent upon the petitioner to allege that without the unconstitutional jury charge regarding the weight to be given prior convictions in the ‘same name’ as his, he would not have been found to be an habitual criminal.”

In the ease before us, the petitioner does not contend that he was not in fact the person previously convicted. As in Lowe, the petitioner has not only failed to allege that the invalid instruction had any effect whatsoever on the outcome of his case, but he also pleaded a matter in direct contradiction. In his petition the petitioner alleges ineffective assistance of counsel for the reason that trial counsel allowed the State to introduce an Idaho conviction that was constitutionally invalid because he was not advised of his constitutional rights prior to entering the guilty plea.

In conclusion, we find that although the petitioner’s claim has not been waived and is not barred by the statute of limitations, we affirm the trial court’s dismissal of this post-conviction petition for failure to state a claim upon which relief may be granted.

WADE, J., concurs. TIPTON, J., concurs and files separate concurring opinion.

1 . State v. Jones, 733 S.W.2d 517 (Tenn.Crim.App.1987).

2 . T.C.A. § 40-30-102 states that a prisoner "must petition for post-conviction relief under this chapter within three (3) years of the date of the final action of the highest state appellate court to which an appeal is taken or consideration of such petition shall be barred.”

3 .T.C.A. § 39-1-804 (1982) provides that where a person is charged with being an habitual criminal, records of prior felony charges shall be admissible and that "a judgment of a conviction of any person in this state, or any other state, country or territory, under the same name as .that by which such person is charged with the commission, or attempt at commission, of a felony under the terms of this chapter, shall be prima facie evidence that the identity of such person is the same.”