# Burford v. State > Tennessee Supreme Court · December 21, 1992 · 845 S.W.2d 204 URL: https://www.frixlaw.com/law-library/cases/9771279 ## Case - **Full name:** Daryl K. BURFORD, Appellant, v. STATE of Tennessee, Appellee - **Court:** Tennessee Supreme Court - **Decided:** December 21, 1992 - **Citations:** 845 S.W.2d 204; 1992 Tenn. LEXIS 699 - **Precedential status:** Published - **Opinion:** Concurrence by Daughtrey - **Judges:** Anderson, Reid, Drowota, O'Brien, Daughtrey - **Cited by:** 610 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9771279 ## How later opinions describe it (automated extraction) - holding that a three-year limitation on pre- senting post-conviction claims ―provides a reasonable opportuni- ty‖ for doing so, but striking the requirement as applied to a de- fendant whose post-conviction claim did not accrue until after the limitation had passed, as he was … - holding that a three-year limitation on presenting post-copviction claims "provides a reasonable opportunity" for doing so, but striking the requirement as applied to a defendant whose post-conviction claim did not accrue until after the limitation had passed, as he was "depri… - finding that due process required tolling the statute of limitations and noting that, “[i]f consideration of the petition is barred, [the defendant] will be forced to serve a persistent offender sentence that was enhanced by previous convictions that no longer stand” - holding that "it is possible that under the circumstances of a particular case, application of the statute [of limitations] may not afford a reasonable opportunity [for the petitioner] to have the claimed issue heard and decided" - holding that to afford a defendant no relief from an enhanced sentence when underlying convictions have been set aside would violate due process and the prohibition against cruel and unusual punishment ## Opinion text DAUGHTREY, Justice, concurring. For almost 20 years, from the time of its passage in 1967 to the time of the 1986 amendment at issue here, Tennessee’s Post-Conviction Procedure Act had no time limitation on the filing of a petition under the Act. Because the courts were too frequently burdened with stale complaints, the legislature attempted to solve this problem by creating a three-year statute of limitations that ostensibly took effect on July 1,1986. See T.C.A. § 40-30-102 (originally enacted as Acts 1986, Ch. 634, § 1). If the amendment had been given literal application by the courts, the new statute of limitations would have barred all claims arising before July 1, 1983, unless they were filed in the short period of time between the date of enactment (March 3, 1986) and the date the statute took effect (July 1, 1986). The Court of Criminal Appeals was the first appellate court to review a due process challenge to such a strict application of the 1986 amendment, in Abston v. State, 749 S.W.2d 487, 488 (Tenn.Crim.App.1988). The court held in that case that the new three-year limitation should apply prospectively only. Id. at 488 . The effect of this ruling, which we now uphold in the instant case, was to allow judicial review of claims arising prior to July 1, 1983, if they were filed prior to July 1, 1989. But the same constitutional sensitivity that produced the Abston court’s holding, to the effect that due process requires adequate notice of statutory filing limitations, is equally relevant here. Moreover, the legislature has spoken on the appropriate length of the filing period for raising post-conviction claims, setting it at three years. Thus, because the factual grounds for relief in this case did not arise until Burford’s convictions on the predicate offenses were set aside on October 24, 1988, I would hold that the time period for the filing of his subsequent petition for relief from the effect of those invalidated judgments should have extended to October 24, 1991. Under this interpretation, the petition for post-conviction relief that Burford filed on May 10, 1990, would clearly be timely. Of course, the legislature could adopt a shorter statute of limitations for later-arising grounds. Perhaps as a matter of policy the petitioner should be restricted to one year — or to even less than one year, as the state argues here. 1 In order to square such an abbreviated limitation with the requirements of due process, however, the petitioner has to have had adequate notice of the shortened period. *211 Currently, the only notice provision imposed by the legislature is the three-year limit found in T.C.A. § 40-30-102. It is true that this three-year period is to be measured from “the date of the final action of the highest state appellate court to which an appeal is taken.” It is also true that a literal application of the statute would make the current petition attacking Burford’s 1985 robbery conviction untimely, because that conviction became final when this Court denied application for permission to appeal on August 4, 1986, and this petition was not filed until May 10, 1990, more than nine months after the statutory period ran out on August 4, 1989. Such a literal interpretation would not be constitutionally consistent with Abston , however. Until the petitioner in this case, and others in his position, are put on notice that § 40-30-102 is not the controlling statute in the case of later-arising grounds, claims such as Burford’s should not be barred by the three-year limitation provision contained in that provision. Here, under a literal interpretation of the statute, Burford would have had just over nine months in which to file a post-conviction petition such as the one in this case, challenging his 1985 conviction of armed robbery and the resulting 50-year sentence. Hypothetically, of course, legitimate grounds for relief might come to light long after the three-year period has run, as in the case of suppression of material evidence by the prosecution that is concealed for many years after trial. Through no fault of his or her own, an inmate in such a situation would be foreclosed from any type of post-conviction relief other than, perhaps, executive clemency. While I adhere enthusiastically to policies of finality and judicial economy, I cannot accept such a narrow interpretation of the 1986 amendment to the Post-Conviction Act. Other courts have found a too-literal reading of a time limitation on post-conviction actions to be constitutionally suspect on due process grounds. For example, in 1983 the Colorado Supreme Court was faced, as we are here, with a request by the state for the strict application of Colorado’s statute of limitations. The court held that the statute as it then existed ... violates due process of law under the Fourteenth Amendment to the United States Constitution and Article II, Section 25 of the Colorado Constitution because it precludes collateral challenges to the constitutional admissibility of prior convictions in pending criminal prosecutions solely on the basis of a time bar, without providing the defendant an opportunity to show that the failure to assert a timely constitutional challenge was the result of circumstances amounting to justifiable excuse or excusable neglect. People v. Germany, 674 P.2d 345, 354 (Colo.1983). In the Germany opinion, the Colorado court also recognized that at least three other states, Illinois, New Jersey, and Wyoming, had enacted statutes permitting post-conviction challenges outside the usual period for filing such petitions upon a showing of some good cause or excuse. Id. As a result of the Germany opinion, the Colorado legislature amended the post-eonviction statute to add an exemption from the rigid time restrictions in those cases “[wjhere the court hearing the collateral attack finds that the failure to seek relief within the applicable time period was the result of circumstances amounting to justifiable excuse or excusable neglect.” Colo. Rev.Stat. § 16-5-402(2)(d). In the meantime, just two weeks after its opinion in Germany , the Colorado Supreme Court had been faced with a factual situation almost identical to that presented in Burford. By applying the principles established in Germany , the court determined that dismissal of petitioner Dugger’s claim, based upon failure to comply with the time limitations of the Colorado statute, violated due process principles. See People v. Dugger, 673 P.2d 351, 352-53 (Colo.1983). In Iowa, a similar due process challenge has been leveled against that state’s statute. In Davis v. State, 443 N.W.2d 707 (Iowa 1989), the Iowa Supreme Court held that the statute imposed a reasonable time restriction on the filing of post-conviction challenges. But the court also noted that *212 the applicable statute of limitations “does furnish an escape clause ... by providing that ‘this limitation does not apply to a ground of fact or law that could not have been raised within the applicable time period.’ ” Id. at 708 . Thus, the Iowa statute would not have precluded a petitioner from raising a post-conviction challenge under the facts presented in this case. It obviously would be best if the Tennessee General Assembly would enact legislation dealing specifically with the effect of T.C.A. § 40-80-102 on later-arising grounds. Until it does, however, I do not believe that we can cut off claims based on such grounds, even though they appear to exceed the three-year limitation on filing, without violating due process. Therefore, I would hold that the statute of limitations in this case did not run until October 24, 1991, and that the petition that Burford filed in this case on May 10, 1990, is not barred by the 1986 amendment to T.C.A. § 40-30-102. . The underlying convictions originally imposed in Wilson County in 1976 were invalidated in that county on October 24, 1988. Because the three-year statute of limitations ran on the 50-year sentence imposed in Trousdale County on August 4, 1989, there was a period of nine months, 12 days between entry of the Wilson County and Trousdale County judgments. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9771279. Public record. Not legal advice.