IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1999 SESSION
FILED
March 3, 2000
JAMES WEBB, * Cecil Crowson, Jr.
No. W1998-00047-CCA-R3-PC
Appellate Court Clerk
Appellant * HAYWOOD COUNTY
VS. * Hon. Dick Jerman, Jr., Judge
STATE OF TENNESSEE, * (Post-Conviction)
Appellee. *
For the Appellant For the Appellee
James Webb, Pro Se Paul G. Summers
#244079 Attorney General and Reporter
NWCX Site 2
Route 1, Box 660 J. Ross Dyer
Tiptonville, TN 38079 Assistant Attorney General
Cordell Hull Building, 2nd Floor
425 Fifth Avenue North
Nashville, TN 37243-0493
Clayburn L. Peeples
District Attorney General
110 S. College Street, Suite 200
Trenton, TN 38382-1841
OPINION FILED:
REVERSED AND REMANDED
NORMA MCGEE OGLE, JUDGE
OPINION
The petitioner, James Webb, appeals as of right from the trial court’s order
summarily dismissing his pro se petition for post-conviction relief without an
evidentiary hearing. We REVERSE the judgment of the trial court and REMAND
for appointment of counsel and review of petitioner’s claims.
I. Procedural History
A Haywood County jury convicted petitioner of aggravated rape. On direct
appeal, he presented various issues for review which included whether the trial
court erroneously excluded testimony regarding jury unanimity at the motion for new
trial. This Court affirmed both the conviction and the sentence imposed by the trial
court. State v. James Webb, C.C.A. No. 02C01-9512-CC-00383, Haywood County
(Tenn. Crim. App. filed February 27, 1997, at Jackson), perm. to app. denied,
(Tenn. November 10, 1997).
Petitioner filed a pro se petition for post-conviction relief on January 23, 1998.
The petition claimed (1) that petitioner received ineffective assistance of trial
counsel and (2) that the trial court erred in refusing to allow proof of alleged jury
misconduct. The petition also contained specific factual bases to support the
allegation regarding ineffective assistance of counsel.
In its order of dismissal, the trial court summarily dismissed the petition
stating only, “upon the petition for post conviction relief filed by . . . James Webb,
the entire record and all the evidence in this cause . . . it satisfactorily appears to the
Court that the said petition . . . does not state any ground or claim upon which relief
may or should be granted.” The trial court made no specific findings to accompany
its dismissal.
II. Analysis
The 1995 Post-Conviction Procedure Act, Tenn. Code Ann. § 40-30-201 to
-310, provides that a trial court must consider a petition within thirty days of its filing
and “examine it together with all the files, records, transcripts, and correspondence
relating to the judgment under attack.” Tenn. Code Ann. § 40-30-206(a).
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Furthermore, the “prescribed form for petitions requires that the grounds for relief
be specified and that a petitioner set out the facts to establish a ‘colorable claim.’”
Harris v. State, 996 S.W.2d 840, 841 (Tenn. Crim. App. 1999)(citing Tenn. R. Sup.
Ct. 28, § 2(H)). If the facts alleged, taken as true, would entitle petitioner to relief,
the trial court should not dismiss the petition. See Tenn. Code Ann. § 40-30-206(f),
(i).
In this case, the post-conviction relief petition specifically asserted that trial
counsel was ineffective for: (1) failing to interview witnesses proffered by petitioner
regarding the victim’s motive to testify against him; (2) failing to present those same
witnesses at trial; and (3) failing to investigate the state’s claim that a witness
against petitioner was unavailable. These claims were further supported by specific
factual allegations. As to petitioner’s claim that the trial court erred in its refusal to
allow questioning to establish jury misconduct, this ground for relief was either
waived for failure to present it on direct appeal or previously determined on direct
appeal. See Tenn. Code Ann. § 40-30-206(g), (h).
We conclude the trial court erred in its summary dismissal of the ineffective
assistance of counsel claim. Unlike the petition reviewed by the panel in Harris
which contained “bare allegations of violations of constitutional rights and mere
conclusions of law,” 996 S.W.2d at 842, this petition contains a “full disclosure of
the factual basis of the grounds asserted.” Id. The petition asserted a colorable
claim which requires additional consideration.
III. Conclusion
Based upon the foregoing, we REVERSE the judgment of the trial court and
REMAND this matter for appointment of post-conviction counsel and for such other
proceedings as may be necessary.
____________________________
Norma McGee Ogle, Judge
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CONCUR:
___________________________
Gary R. Wade, Presiding Judge
____________________________
John Everett W illiams, Judge
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