IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
DECEMBER 1998 SESSION FILED
April 20, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, )
) C.C.A. No. 02C01-9805-CC-00131
Appellee, )
) Madison County
V. )
) Honorable Whit Lafon, Judge
)
ROBERT LEE MOORE, ) (Petition for Post-Conviction Relief)
)
Appellant. )
)
FOR THE APPELLANT: FOR THE APPELLEE:
JOSEPH L. PATTERSON JOHN KNOX WALKUP
225 West Baltimore Suite B Attorney General & Reporter
Jackson, TN 38301
ELIZABETH T. RYAN
Assistant Attorney General
Criminal Justice Division
425 Fifth Avenue North
Nashville, TN 37243
JAMES G. “JERRY” WOODALL
District Attorney General
AL EARLS
Assistant District Attorney
P.O. Box 2825
Jackson, TN 38302-2825
OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIAMS,
Judge
OPINION
The petitioner, Robert Lee Moore, appeals under Tennessee Code
Annotated § 40-30-216 and contests the post-conviction court’s dismissing his
petition for relief. The petitioner alleges that ineffective assistance of his trial
counsel merits a new trial. He further alleges that the Order Denying Post-
Conviction Relief was improperly entered and lacks proof adduced at the post-
conviction relief evidentiary hearing. We AFFIRM the Order below.
BACKGROUND
In May 1994, the Circuit Court of Madison County, Tennessee, sentenced
the petitioner, Robert Lee Moore, as a career criminal after convicting him of
possession of a schedule II controlled substance with intent to sell or deliver. 1
The petitioner was represented by counsel at trial.
After this Court affirmed the conviction and sentencing on direct appeal,
the petitioner filed a pro se petition for post-conviction relief regarding the May
1994 conviction and other convictions pertinent to the sentence. The petitioner,
seeking either a new trial or a new sentencing hearing, alleged that he entered
guilty pleas to those prior charges without being advised of his rights against self-
incrimination and to confront and cross-examine witnesses. He further alleged
that he was not advised of “any of his rights” in the schedule II substance
possession case. Finally, he argued that the trial judge erred by not charging the
jury with lesser offenses at the conclusion of his trial for possession of schedule
II substance.
The post-conviction court appointed counsel for the petitioner, and the
petitioner amended his petition. The petitioner further addressed the prior
1
The record shows that the petitioner has faced earlier and apparently unrelated
schedule II substance possession charges. However, we discuss only this most recent
conviction.
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convictions and both the jury instructions and the sentencing for his schedule II
possession charge. Further, the state’s response to his proposed amendments
included an allegation that “‘any issue regarding failure to raise errors at
sentencing were [sic] waived by failing to raise these issues on appeal.’” In the
petitioner’s first amended petition, he alleged that this response “plainly”
indicated ineffective assistance of counsel during both the trial and the direct
appeal of that trial. He then specifically asserted that counsel’s not objecting to
the jury instructions at his schedule II substance possession trial and improperly
presenting pertinent time frames of prior convictions germane to his career
criminal sentence constituted ineffective assistance of counsel.
Finally, the petitioner filed a second amendment to his petition alleging
that the schedule II substance possession charge indictment omitted the
requisite mental state.
At the post-conviction relief evidentiary hearing, the petitioner entered
exhibits of the minutes from a hearing regarding a prior aggravated assault
charge and of indictments regarding both his prior convictions and his schedule II
substance possession charge. The petitioner testified that his trial counsel did
not call an important witness, who had since died. The petitioner also testified
that his counsel ineffectively prepared for the defense and did not communicate
with the petitioner. The Circuit Court of Madison County, Division I, dismissed
the petition. That court held that the petitioner waived his argument regarding
failure to call the witness by omitting that issue from his pleadings. The trial
court also held that this Court’s affirmation, on direct appeal, of the petitioner’s
career criminal sentencing barred that issue as grounds for post-conviction relief.
The post-conviction court additionally held that the petitioner offered neither
proof nor any factual allegations of his remaining claims of ineffective assistance
of counsel.2
2
The post -con viction Ord er als o add ress ed ot her c laim s not pres ente d in this appe al.
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On this appeal, the petitioner alleges that he did not approve the
subsequent post-conviction court Order and that this Order lacks a certificate of
service to him. He further alleges that the Order omits proof he adduced at his
hearing. He requests a new trial.
STANDARD OF REVIEW
At an evidentiary hearing pursuant to a post-conviction relief petition, the
petitioner must provide clear and convincing evidence that a “conviction or
sentence is void or voidable because of the abridgment of any right guaranteed
by the Constitution of Tennessee or the Constitution of the United States.” Tenn.
Code Ann. §§ 40-30-203, 210(f). Tennessee Code Annotated § 40-30-210(c)
limits a petitioner at a post-conviction relief evidentiary hearing “to evidence of
the allegations of fact in the petition.” A trial court’s findings of fact and
conclusions of law from the petitioner’s evidentiary hearing carry the weight of a
jury verdict. See Black v. State, 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).
This Court does not reweigh or reevaluate evidence and does not substitute its
own inferences for those determined by the trial court. See id. The petitioner
must show that “the evidence contained in the record preponderates against the
judgment entered in the cause.” Id.
ANALYSIS
We first address the petitioner’s asserted “prima facie case” of ineffective
assistance of counsel. The petitioner claims that trial counsel did not call a
particular witness, a witness who allegedly died after the trial. However, the
petitioner’s pleadings omit any relevant factual allegations. The trial court’s
Order Dismissing Petition correctly states that the petitioner waived this claim by
omission. Tenn. Code Ann. § 40-30-210(c) (“[p]roof upon the petitioner’s claim or
claims for relief shall be limited to evidence of the allegations of fact in the
petition”); see Thomas Edward Murphy, Jr. v. State, No. 02C01-9710-CC-00378
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(Tenn. Crim. App. filed Nov. 9, 1998, at Jackson). This allegation is without merit.
The petitioner also alleges that his counsel improperly presented the
dates of prior convictions pertinent to the subsequent career criminal sentence.
This Court approved the sentence on direct appeal. “It is . . . well-settled law in
the area of post-conviction practice that issues which were previously determined
in earlier proceedings are not subject to relitigation.” Robert Senick v. State, No.
01C01-9711-CR-00550 (Tenn. Crim. App. filed Dec. 3, 1998, at Nashville). We
concur with the post-conviction court’s determination that the ruling on the direct
appeal precludes this issue as a basis for post-conviction relief.
The petitioner’s remaining points pertinent to his prima facie case involve
the trial counsel’s preparation for the defense and communication with the
petitioner. The petitioner asserts that his testimony at the post-conviction
hearing “clearly created a factual issue as to the number of meetings and the
entire course of preparation for the trial and sentencing.” The Code requires
more than a “factual issue.” The statutes require “clear and convincing
evidence.” Tenn. Code Ann. § 40-30-210(f).
None of the three petitions comprised the requisite “factual allegations” of
deficient communication with the petitioner and general lack of preparation.” A
post-conviction court reviews a submitted petition without regard for the “factual
merits of the allegations” and determines whether, assuming the allegations are
true, a “colorable claim is stated.” John Paul Seals v. State, No. 03C01-9802-
CC-00050 (Tenn. Crim. App. filed Jan. 6, 1999, at Knoxville). However, “[t]he
petitioner shall include allegations of fact supporting each claim for relief set forth
in the petition.” Tenn. Code Ann. § 40-30-204(e). Further,
[t]he petition must contain a clear and specific statement of all
grounds upon which relief is sought, including full disclosure of the
factual basis of those grounds. A bare allegation that a
constitutional right has been violated and mere conclusions of law
shall not be sufficient to warrant any further proceedings. Failure to
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state a factual basis for the grounds alleged shall result in
immediate dismissal of the petition.
Tenn. Code Ann. § 40-30-206(d) (emphasis added).
The petitioner’s pleadings did not constitute “allegations of fact” regarding
either generally deficient preparation or communication. Appointed counsel
twice amended the pro se petition. The first amended petition noted that the
state’s response to the proposed amendments in part asserted that “‘any issue
regarding failure to raise errors at sentencing were [sic] waived by failing to raise
these issues on appeal.’” The petitioner alleges that this response “plainly”
indicates ineffective assistance of counsel at trial. We agree with the post-
conviction court: the petitioner waived these grounds for relief by omission.
In Johnny Wayne Harris v. State, No. 03C01-9803-CR-00086 (Tenn.
Crim. App. filed Jan. 6, 1999, at Knoxville), this Court approved the dismissal of
a petitioner’s claim because the petition did not satisfy statutory requirements.
Allegations that his trial counsel was ineffective, for reasons including less than
zealous representation and not conducting witness investigations, did not
constitute a “colorable claim,” because the petition omitted, among other factors,
the identity of the witnesses and to what the witnesses would have testified. The
petition fell short of the required “full disclosure of the factual basis of the
grounds asserted.” Id.; see also Thomas Edward Murphy, Jr. v. State, No.
02C01-9710-CC-00378 (Tenn. Crim. App. Filed Nov. 9, 1998, at Jackson). But
cf. Coyce E. Wells v. State, No. 01C01-9602-CC-00054 (Tenn. Crim. App. filed
Jan. 16, 1997, at Nashville) (The petitioner’s assertion that “he experienced
ineffective assistance of counsel at original sentencing for lack of appeal”
constituted a sufficient “factual basis.”).
In the instant case the petitioner relied on a conclusory sentence in his
first amended petition. The petitioner asserted that the state’s response “clearly”
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established ineffective assistance of counsel both on appeal and at the trial.
Apparently, the petitioner concluded that his noting the state’s argument, which
addressed the petitioner’s waiving issues by not including them on his direct
appeal, in conjunction with the petitioner’s testimony at the hearing established
a “factual allegation.” We agree with the post-conviction court decision that the
petitioner did not “state any factual basis” for these particular alleged bases of
relief.
Further, even if the petitioner established the requisite factual allegations,
his proof at the hearing fell substantially below the required standard His
offered proof consisted solely of his own testimony and several exhibits. The
petitioner offered no explanation regarding the relevance of prior indictments and
hearing minutes to the claimed deficient preparation and communication. He
offered no relevant proof beyond his own testimony. “The presumption is that
the attorney rendered effective assistance, and the burden is on the petitioner to
prove that the assistance was ineffective.” Thomas Edward Murphy v. State, No.
02C01-9710-CC-00378 (Tenn. Crim. App. filed Nov. 9, 1998, filed at Jackson).
“In a post-conviction proceeding, a petitioner’s uncorroborated testimony is
insufficient to carry this burden of proof.” Id. We do not find the preponderance
of evidence necessary to overturn the post-conviction court’s finding on this
issue. Also, the petitions contested the trial court’s jury instructions, but the
petitioner offered no proof of this issue at the hearing. Therefore, these points of
the petitioner’s appeal are also without merit.
The petitioner’s remaining argument addresses the trial court’s Order
Denying Post-Conviction Relief. He asserts that this Order was improperly
entered because the petitioner did not approve the Order and because the Order
lacked a certificate of service for the petitioner’s counsel. The petitioner
apparently contends that the filing prejudices his appeal by depriving him of
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opportunity to ensure that the Order incorporated certain “proof adduced in the
hearing.”
Tennessee Code Annotated § 40-30-211(b) requires that the post-
conviction court file a final order comprising the “findings of fact and conclusions
of law with regard to each . . . ground presented.” The Order adequately
explains the factual and legal bases for the post-conviction court’s denying relief
regarding the career criminal sentencing and the jury instructions. This Court
reviewed the hearing transcript and concurs with the post-conviction court’s
finding that the petitioner presented insufficient proof to carry his claims
regarding failure to call a witness, inadequate prepare for the defense, and
deficient communication with the petitioner, See Daniel B. Taylor v. State, No.
02C01-9703-CR-00091 (Tenn. Crim. App. filed March 18, 1998, at Jackson)
(Reversal of the post-conviction court’s judgment is not necessary, despite
noncompliance with the statute, if “the record transmitted to this [C]ourt is
sufficient to effectuate a meaningful appellate review on each ground raised in
the petition.”). This issue is without merit.
CONCLUSION
The post-conviction court’s dismissal of the petition is AFFIRMED and the
petitioner’s appeal as to the filing of that court’s order is DISMISSED.
_____________________________
JOHN EVERETT W ILLIAMS, Judge
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CONCUR:
____________________________
GARY R. WADE, Presiding Judge
(NOT PARTICIPATING)
THOMAS T. W OODALL, Judge
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