¶1concurring.
¶2I concur in results only. I believe that the statute of limitations barred the court from considering the present petition and that Burford v. State, 845 S.W.2d 204 (Tenn.1992), has no bearing on this case.
¶3The appellate process is to review trial court actions upon the record. In this case, except for one regarding double jeopardy, the grounds for relief presented in the pro se petition relate to the claim of the ineffective assistance of counsel. In this respect, the petitioner alleged that his trial attorney was ineffective by failing to object to the trial court’s jury instruction on the prima facie identity evidence which improperly shifted the burden of proof to the petitioner.
¶4On its face, the petition reflects that it is barred by the statute of limitations and con*232tains no allegation as to why it is not time-barred. Trial counsel was appointed to represent the petitioner, but no amendment was filed to the petition and no response was filed to the state’s motion to dismiss because of the statute of limitations. When counsel is appointed and the case proceeds without any amendments, the trial court is entitled to take action on the pleadings and the records before it if such is warranted. This includes a dismissal for failure to state a claim for relief. See State v. Smith, 814 S.W.2d 45 (Tenn.1991). Also, it would include granting a motion to dismiss because the petition is time-barred. Such is what occurred in this case.
¶5In his direct appeal from the conviction and life sentence, the petitioner contended that the use of the prima facie identity evidence statute, T.C.A. § 39-1-804 (1982) [repealed], and the trial court’s jury instruction thereon impermissibly shifted to the petitioner the burden of proving that the prior convictions were not his. This court held that the issues were waived because the petitioner did not object to the instruction when it was given nor did he include either issue in his motion for new trial. State v. Jones, 733 S.W.2d 517, 523-24 (Tenn.Crim.App.1987). Most importantly for this case, this court also noted that the instruction given by the trial court was incorrect, indicating that it was worded as a mandatory presumption and not a permissive one. Id.It relied upon State v. James Randolph Funzie, No. 28, Shelby Co., 1986 WL 3540 (Tenn.Crim.App., Mar. 19, 1986), applic. denied (Aug. 4, 1986) (concurring in results only), in which this court reversed an habitual criminal sentence and held that the proper instruction should be couched in terms that the jury “may, but need not, make the inference in question.”
¶6This means that the petitioner was put on notice in his direct appeal that the instruction in his case was improper and that the refusal of this court to give him relief might have resulted from his attorney’s ineffectiveness. The then availability of this ground for relief is buttressed by the fact that this court had previously held that the prima facie identity evidence statute did not create a mandatory presumption, but only a permissive inference. See State v. Woodson, 705 S.W.2d 677 (Tenn.Crim.App.1985).
¶7Given this state of the law and, specifically, the law of the petitioner’s case, I have difficulty in concluding that the petitioner did not have the opportunity, as Burfordcontemplates due process to require, to present the claim he now raises within the applicable three-year statute of limitations. I acknowledge that there were some conflicting unpublished opinions in Tennessee about the propriety of using a prima facie evidence instruction in the sentencing phase of an habitual criminal case and that Lowe v. State, 805 S.W.2d 368 (Tenn.1991), finally resolved the conflict. It may well be that Burfordwould allow a Loweclaim to be filed outside of the original statute of limitations in the appropriate case. However, this does not mean that the constitutional right at issue did not exist for this particular petitioner in such a fashion as to allow him the opportunity to assert it before the statute of limitations ran, particularly in the context of his complaint that his trial attorney was ineffective by failing to preserve a claim which this court stated would, otherwise, have merit.