Opinion
No. E2005-01712-CCA-R3-PC.
Filed March 3, 2006.
Appeal from the Criminal Court for Hamilton County; No. 253947; Douglas A. Meyer, Judge.
Judgment of the Criminal Court Affirmed Pursuant to Rule 20, Tenn. Ct. Crim. App. R.
Luther E. Fowler, Mountain City, Tennessee, Pro se.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; William H. Cox, III, District Attorney General, for the appellee, State of Tennessee.
Gary R. Wade, P.J., delivered the opinion of the court, in which Joseph M. Tipton and Norma McGee Ogle, J.J., joined.
MEMORANDUM OPINION
The petitioner, Luther E. Fowler, appeals the trial court's order dismissing his petition for post-conviction relief. The state has filed a motion requesting that this court affirm the trial court's denial of relief pursuant to Rule 20, Tenn. Ct. Crim. App. R. The pleading is barred as a successive petition attacking the same judgment and by the statute of limitations and was properly dismissed. Accordingly, the state's motion is granted and the judgment of the trial court is affirmed.
In 1992, the petitioner was originally convicted for felonious assault with a firearm with intent to commit first degree murder and received a Range III sentence of 60 years; however, this court reversed the sentence and remanded for a new sentencing hearing. See State v. Luther E. Fowler, No. 03C01-9207-CR-00249 (Tenn.Crim.App. July 27, 1993). On appeal following the proceedings on remand, this court again reversed and remanded after concluding that the trial court erred in prohibiting the state from establishing the petitioner's sentencing range. See State v. Luther E. Fowler, No. 03C01-9409-CR-00334 (Tenn.Crim.App. Sept. 19, 1995). In May 1994, while a third sentencing hearing was pending, the petitioner filed his first post-conviction petition. It was dismissed following an evidentiary hearing. On appeal, this court initially reversed the judgment of the trial court and granted post-conviction relief but on rehearing vacated its judgment and dismissed the petition as prematurely filed. See Luther E. Fowler v. State, No. 03C01-9501-CR-00027 (Tenn.Crim.App. Jan. 11, 1996), reh'g granted (Tenn.Crim.App. Feb. 15, 1996). Thereafter, the petitioner filed a second petition for post-conviction relief which the trial court dismissed following an evidentiary hearing. See Luther E. Fowler v. State, No. 03C01-9711-CR-00509 (Tenn.Crim.App., Knoxville, July 30, 1999),app. denied (Tenn. Nov. 22, 1999). In addition, the petitioner has pursued habeas corpus relief without success. On appeal, this court affirmed the judgment of the trial court dismissing his petition based on the petitioner's failure to present a cognizable claim for relief. See Luther E. Fowler v. State, No. E2004-01346-CCA-R3-CD (Tenn.Crim.App. Mar. 21, 2005), app. denied (Tenn. June 27, 2005).
On April 25, 2005, the petitioner filed the instant, third post-conviction petition in which he sought the appointment of counsel and a delayed appeal from his conviction for felonious assault and 40-year sentence. In support of his petition, the petitioner stated that he assumed that his trial counsel would pursue an appeal as of right following his third sentencing hearing, but "[t]his did not occur." The petitioner argued that counsel's failure to appeal denied him his right to the effective assistance of counsel as well as his rights to due process and equal protection of the law. The trial court dismissed the petition, finding that it was statutorily barred as a second or successive petition challenging the same judgment. See Tenn. Code Ann. § 40-30-102(c). The trial court further ruled that the petitioner had waived the claims raised in the instant petition when he failed to present them in his second post-conviction petition.
Before this court, the petitioner contends that his 40-year sentence is illegal and that there is no statutory time limit for seeking a delayed appeal. Further, he asserts that the history of his "prior direct appeals and imprudently filed post-conviction have no bearing on whether or not he has been presented with an appeal as of right" from his allegedly illegal sentence.
Tennessee Code Annotated Section 40-30-102(a) provides that a person must petition for post-conviction relief within one year of the date on which the judgment became final or consideration of the petition will be time-barred. The statute emphasizes that "[t]ime is of the essence of the right to file a petition for post-conviction relief or motion to reopen established by this chapter, and the one-year limitations period is an element of the right to file such an action and is a condition upon its exercise." Tenn. Code Ann. § 40-30-102(a). As the state correctly notes, this court has held that the statute of limitations for post-conviction relief applies to delayed appeals as well, because the petitioner must comply with the post-conviction procedure act to obtain a delayed appeal. See Owens v. State, No. 03C01-9205-CR-177, slip op. at 4 (Tenn.Crim.App. Apr. 28, 1993), app. denied (Tenn. Aug. 2, 1993). In the present case, the petitioner was finally sentenced on May 30, 1996. The instant petition was not filed until nearly nine years after entry of the challenged judgment and well beyond the one-year limitations period. Moreover, the trial court correctly ruled that the petitioner was not entitled to challenge the same judgment after an earlier petition, his second, had been resolved on the merits.See Tenn. Code Ann. § 40-30-102(c). Other than asserting his belief that his counsel would appeal his judgment, the petitioner does not explain his failure timely to pursue post-conviction relief and obtain a delayed appeal. In its order, the trial court notes that the petitioner's position was no longer reasonable at least after July 1999 when this court in its opinion affirming the dismissal of the petitioner's second post-conviction petition noted that no direct appeal was taken from the judgment imposing the 40-year sentence. For each of the foregoing reasons, we conclude that the petition was properly dismissed.
Accordingly, the state's motion is granted. The judgment of the trial court is affirmed in accordance with Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.