         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs August 20, 2002

          SHAUN LAMONT HEREFORD v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Hamilton County
                          No. 239059    Douglas A. Meyer, Judge



                                  No. E2002-01222-CCA-R3-PC
                                       November 13, 2002

The petitioner, Shaun Lamont Hereford, appeals the Hamilton County Criminal Court’s dismissal
of his petition for post-conviction relief, in which he alleged void convictions, misrepresentation by
his trial attorney, and that he was entitled to DNA analysis of physical evidence. Discerning no error
in the trial court’s dismissal of the petition without an evidentiary hearing, we affirm.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which GARY R. WADE, P.J.,
and ROBERT W. WEDEMEYER , J., joined.

Shaun Hereford, Appellant, Pro Se.

Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger, Assistant Attorney General;
William H. Cox, III, District Attorney General; and Rodney Strong, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                             OPINION

                The record on appeal contains little more than the post-conviction petition as
supplemented, the court’s order dismissing the petition, and the petitioner’s notice of appeal. From
the petition, we glean that the petitioner is challenging his 1994 convictions in numerous indictments
for aggravated burglary and theft. He was convicted by a jury on some counts and pleaded guilty
to the remaining counts. Apparently the judgments on the guilty-pleaded counts, if not the
judgments in all counts, were entered on June 21, 1994. No appeal was taken.

               On January 7, 2002, the petitioner filed a petition for post-conviction relief. In this
petition as amended or supplemented, he alleged that his trial counsel represented to him that he
would receive an effective Department of Correction sentence of 42 years for all of his June 21, 1994
convictions. The petitioner claimed that a Department of Correction “TOMIS”1 letter dated October
6, 2001 advised him for the first time that his effective sentence was 52 years. He also claimed that
his counsel had told him that, as a career offender, he would be released upon serving 60 percent of
his sentence but that the TOMIS letter informed him that he would only be eligible for release after
serving 60 percent of his sentence. Further, the petitioner claimed in his petition that the TOMIS
letter revealed that the petitioner was serving sentences in cases in which he received no convictions.
Finally, the petitioner moved the court for an order directing discovery of the state’s trial exhibits
of physical evidence so as to allow him to discern the proper exhibits to be the subject of DNA
analysis, which he alleged would exonerate him from the crimes of which he stands convicted.

                The petitioner alleged in his petition that his 2002 petition for post-conviction relief
was not barred by the one-year statute of limitations because principles of due process compel that
he be allowed to avoid the statute of limitations so as to present his claims of attorney
misrepresentation. The petition recites that the DNA analysis claim is unfettered by any applicable
statute of limitations.

                The post-conviction court held that the Post-Conviction DNA Analysis Act of 2001,
Tenn. Code Ann. §§ 40-30-401 to -413 (Supp. 2001), provides that a petitioner who challenges
burglary or theft convictions pursuant to the Act may obtain no relief unless the same is “directed”
by the trial court. The lower court declined to direct any discovery or DNA analysis on the grounds
that many of the petitioner’s convictions were the result of guilty pleas which were presented to the
court upon agreed factual bases and in which the defendant admitted guilt.

                The post-conviction court then opined that, to the extent that the petitioner sought to
attack the Department of Correction’s calculation of his sentences, the claim was not cognizable in
a post-conviction proceeding. Finally, the lower court held that the claims of misrepresentation of
counsel were barred by the post-conviction statute of limitations and that “due process does not
require tolling of the limitations period or even an evidentiary hearing [because] any claim of
misrepresentation on the part of counsel regarding the petitioner’s release eligibility [did not arise]
after commencement of the limitations period.”

                 The court’s order recited in a footnote that the TOMIS letter does not include any
charges from the June 21, 1994 proceedings that were not described in the guilty plea petition. The
post-conviction court concluded that trial counsel did not misrepresent the release eligibility date or
the length of the effective sentence because the actual length of the June 21, 1994 effective sentence
was in fact 42 years.




        1
          In 197 8 the D epartment of Correction implemented the Offender Based Computer Information System
(OB CIS). In 1992 the department converted from OB CIS to the current system, the Tennessee Offender Management
Information System. See Jerome Streeter v. Ten nesse e Depa rtment of C orrection, No. M1999-02267-COA-R3-CV
(Tenn. Ct. App., Nashville, Aug. 31, 2000).

                                                     -2-
               Indeed, we note from the TOMIS letter and the guilty plea petition affixed to the post-
conviction petition that the additional ten years was apparently derived from 1988 and 1990
convictions for larceny and burglary. For these convictions, the defendant received an effective
incarcerative sentence of ten years, and the 1994 sentences were apparently imposed to run
consecutively to these earlier sentences, as provided in the guilty plea submission petition.

                Post-conviction relief is only available when “the conviction or sentence is void or
voidable because of the abridgment” of a constitutional right. Tenn. Code Ann. § 40-30-203 (1997).
The post-conviction petitioner bears the burden of proving his or her allegations by clear and
convincing evidence, id. § 40-30-210(f) (1997); however, if prior to the evidentiary hearing the trial
court reviews the post-conviction record and determines “that the petitioner is entitled to no relief,
the court shall dismiss the petition,” id. § 40-30-209(a) (1997); Tenn. R. Sup. Ct. 28 § 6(B)(4)(a)
(court may dismiss post-conviction petition that states no colorable claim).

                 Unless the post-conviction petition is filed within one year “of the date of the final
action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within
one (1) year of the date on which the judgment became final,” the post-conviction claims are barred.
Tenn. Code Ann. § 40-30-202(a) (1997); see also Williams v. State, 44 S.W.3d 464, 468 (Tenn.
2001) (post-conviction claimant whose conviction was finalized between May 10, 1992 and May 10,
1995 has until May 10, 1996 to file a post-conviction petition).

               First, we address the petitioner’s claim that he is illegally and unconstitutionally
serving sentences in the Department of Correction that are not based upon any imposed convictions.
He claims that some of the convictions listed in the TOMIS report are not included in his June 21,
1994 plea petition. He argues that his claim is not barred by the statute of limitations because
principles of due process entitle him to present a post-conviction claim which he has been denied
a “reasonable opportunity to assert . . . in a meaningful time and manner.” See Williams, 44 S.W.3d
at 468.

               We disagree and hold that the claim is barred by the statute of limitations. The
petition makes no case that the petitioner was denied a reasonable opportunity to assert his post-
conviction claim of illegal sentences; it merely asserts that the petitioner “discovered on or about
10/10/92 that he had been convicted and sentenced for offenses he had not pleaded guilty to.” This
allegation is insufficient to invoke due process considerations to toll the running of the post-
conviction statute of limitations. See Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App. 1996)
(“[T]he petitioner’s claimed lack of knowledge does not toll the statute [of limitations] for post-
conviction purposes.”)

               Thus, post-conviction relief on this issue is barred by the post-conviction statute of
limitations. That said, we are aware that the petitioner claims entitlement to attack an illegal
sentence “at any time.” See, e.g., State v. Mahler, 735 S.W.2d 226, 228 (Tenn. 1987); State v.
Burkhart, 566 S.W.2d 871 (Tenn. 1978). This court has previously explained that the phrase “illegal
sentence” is synonymous with the habeas corpus concept of a void sentence and is, therefore,


                                                  -3-
cognizable in a habeas corpus proceeding. Cox v. State, 53 S.W.3d 289, 292 (Tenn. Crim. App.
2001). However, the petitioner in the present case has failed to comply with the procedural
requirements for filing and prosecuting a petition for writ of habeas corpus. See Tenn. Code Ann.
§ 29-21-107 (2000) (requiring verified petition, to which is appended a copy of the legal process
upon which the restraint is based, and requiring that the petition state the specific facts of the
petitioner’s restraint and affirm that the claim of illegality of the restraint has not previously been
brought and that the application is a first application for the writ, or if not, that a copy of any
previous petition and proceedings be presented); see also Cox, 53 S.W.3d at 292. Thus, even though
our Code sets forth no statute of limitations for quests to obtain a writ of habeas corpus, treating the
petitioner’s proceeding as one in habeas corpus is not beneficial to him.

                  As an aside, we note that we have considered whether Code section 29-21-104
compelled the trial court to consider habeas corpus relief, despite the petitioner’s noncompliance
with the requirements for habeas corpus proceedings. Section 29-21-104 provides that when a court
with powers to issue the writ “has evidence, from a judicial proceeding, that any person within the
jurisdiction of such court . . . is illegally imprisoned or restrained of his liberty, it is the duty of such
court . . . to issue . . . the writ . . ., although no application has been made therefor.” Tenn. Code
Ann. § 29-21-104 (2000). However, in the present case, the record before us belies the petitioner’s
contention that his June 21, 1994 plea petition did not include charges that became the bases for
convictions and sentences listed in the TOMIS letter. We have reviewed and compared the TOMIS
list with the June 21, 1994 plea petition and find that no sentences are being executed upon June 21,
1994, convictions that are not contained in the June 21, 1994 plea petition.2 Thus, the petitioner
alleged no basis for the issuance of a writ of habeas corpus.

                We now address the claim of misrepresentation by trial counsel and conclude that it
is barred by the post-conviction statute of limitations. The petitioner claims that counsel
misrepresented the length of the aggregate sentence resulting from the charges that were disposed
of on June 21, 1994 and misrepresented the nature of the 60 percent release eligibility date. He
argues that, in Williams, our supreme court established a rule that attorney misrepresentation tolls
the post-conviction statute of limitations.

                We point out that the Williams court was reviewing attorney “misrepresentation in
failing to properly withdraw from representation [following this court’s affirmance on appeal] and
in failing to notify the petitioner that no application for permission to appeal would be filed.”
Williams, 44 S.W.3d at 468 n.7. In the present case, the petitioner alleges no actions by trial counsel
that hampered the petitioner from presenting his claims or taking an appeal. Moreover, the
petitioner’s June 21, 1994 plea petition recites that the effective 42-year sentence imposed on the
June 21, 1994 convictions would run consecutively to at least the seven-year effective sentence,


         2
           W e note that the TO MIS letter references a few convictions that emanated from judgment dates other than June
21, 1994. W e also note that only the odd-num bered pages from the T OM IS letter w ere exhibited to the petitioner’s
supplemental petition and were included in the appellate record. The TOM IS letter reflects 22 convictions on June 21,
199 4 for burglary o r theft, and the plea petition reflects 32 such convictions, not counting misdemeanors.

                                                          -4-
which was imposed in 1990 to run consecutively to the 1988 three-year effective sentence.3 The
effective sentence yielded by the three sets of convictions is 52 years, the amount calculated by the
Department of Correction.

                 Furthermore, in the face of a due process claim, see Burford v. State, 845 S.W.2d 204
(Tenn. 1992), this court has held that a “petitioner’s lack of knowledge that he had grounds for a
petition for post-conviction relief until after the statute of limitations had run cannot defeat the
application of the statute of limitations.” Howard Templeton v. State, No. 01C01-9406-CC-00220,
slip op. at 3 (Tenn. Crim. App., Nashville, Jan. 3, 1995). Petitioner Templeton claimed in that case
that his trial counsel misinformed him that his 35 percent release eligibility date meant that he
“would be released” upon serving 35 percent of his sentence and that he did not learn of the
misstatement until his parole was denied following the release eligibility date. Id. Nevertheless, this
court held that the post-conviction petition filed beyond the statute of limitations was barred and
said, “To hold otherwise would defeat the purpose of the statute of limitations in protecting the
State’s interest in preventing the litigation of stale and fraudulent claims and in ensuring
administrative efficiency and economy.” Id. In like manner, we hold that the instant petitioner’s
claim of counsel misrepresentation is barred by the statute of limitations.

                We now turn to the petitioner’s issue that he should have been allowed to proceed
with his claim pursuant to the Post-Conviction DNA Analysis Act of 2001. See Tenn. Code Ann.
§§ 40-30-401 through -413 (Supp. 2001). At the outset, we note that the Act contains no explicit
statute of limitations. Cf. id. § 40-30-202(a) (1997) (establishing one-year post-conviction statute
of limitations that governs petitions pursuant to Part 2 of Title 40, Chapter 30 (Post-Conviction
Procedure Act)); id. § 40-30-401 (Supp. 2001) (Post-Conviction DNA Analysis Act of 2001 set forth
in Part 4). Persons convicted of certain crimes may petition the trial court and request “forensic
DNA analysis of any evidence that is in the possession or control of the prosecution, law
enforcement, laboratory, or court, and that is related to the investigation or prosecution that resulted
in the judgment of conviction and that may contain biological evidence”; even so, petitioners
convicted of burglary or theft may only file the petition “at the direction of the trial judge.” Id. § 40-
30-403 (Supp. 2001). A trial court shall order the DNA analysis if it finds that:

                           (1) A reasonable probability exists that the petitioner would
                    not have been prosecuted or convicted if exculpatory results had been
                    obtained through DNA analysis;

                           (2) The evidence is still in existence and in such a condition
                    that DNA analysis may be conducted;

                           (3) The evidence was never previously subjected to DNA
                    analysis or was not subjected to the analysis that is now requested
                    which could resolve an issue not resolved by previous analysis; and


        3
            The 1990 effective sentence resulted from at least eleven co nviction s for burglary or larcen y.

                                                            -5-
                       (4) The application for analysis is made for the purpose of
               demonstrating innocence and not to unreasonably delay the execution
               of sentence or administration of justice.

Id. § 40-30-404 (Supp. 2001). When a petition is filed, the court “may in its discretion make such
other orders as may be appropriate.” Id. § 40-30-411 (Supp. 2001).

                In our view, the post-conviction judge did not abuse his discretion in declining to
“direct” the advancement of the petitioner’s DNA analysis request. In his petition, the petitioner
sought analysis of “[some] items in state possession which were used as ‘[prosecution exhibits]’ to
convict Petitioner . . . [and] can prove his innocence through DNA analysis. The test results would
show the identity of the real perpetrator of said crimes.” The petition then requested discovery “from
the state in order to fully identify the items . . . which are best suited for DNA analysis.”

              These allegations utterly fail to demonstrate bases upon which the post-conviction
court could make the findings required by Code section 40-30-404, and accordingly, they fail to state
a claim pursuant to the Act. We hold that the trial court did not err in summarily dismissing this
claim.

              Having now reviewed all of the issues raised by the petitioner on appeal, we affirm
the judgment of the trial court.




                                                       ___________________________________
                                                       JAMES CURWOOD WITT, JR., JUDGE




                                                 -6-
