IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
DECEMBER 1998 SESSION
March 3, 1999
Cecil W. Crowson
WILLIAM D. PEWITT, ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9804-CC-00195
)
) Williamson County
v. )
) Honorable Henry Denmark Bell, Judge
)
STATE OF TENNESSEE ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
William D. Pewitt, Pro se John Knox Walkup
No. 119709, T.C.I.P. Attorney General of Tennessee
Route 1 and
Only, TN 37140-9709 Daryl J. Brand
Assistant Attorney General of Tennessee
425 Fifth Avenue North
Nashville, TN 37243-0493
Ronald L. Davis
District Attorney General
Williamson County Courthouse
P.O. Box 937
Franklin, TN 37065-0937
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, William D. Pewitt, appeals as of right from the dismissal of
his petition for post-conviction relief by the Williamson County Circuit Court. He seeks
relief from his 1994 convictions for witness coercion, a Class D felony, and assault, a
Class A misdemeanor. His convictions were affirmed on appeal. State v. William D.
Pewitt, No. 01C01-9411-CC-00375, Williamson County (Tenn. Crim. App. Aug. 22,
1996), app. denied (Tenn. Jan. 1, 1997). The petitioner contends that the trial court
erred in dismissing his petition without appointing counsel, allowing amendment of the
petition with the aid of counsel, or holding an evidentiary hearing. We affirm the trial
court’s order dismissing the petition for failure to state a claim.
The original petition filed by the petitioner alleges that the prosecution
suppressed evidence favorable to the petitioner, but no particulars are mentioned. It
alleges that there was prosecutorial and judicial misconduct in the case that “could
extend” to an unconstitutionally selected and impaneled jury, but no particulars are
mentioned. It alleges that the petitioner was denied the effective assistance of counsel,
but no particulars are mentioned. It also alleges that the petitioner has “documents and
information” of newly discovered evidence to support his contention that he was denied
a fair, unbiased and impartial trial, but no particulars are mentioned. The petition
asserts that the petitioner needs a copy of all the case records in order to address the
issues completely, and it refers to a Tennessee Bureau of Investigation probe “into the
charges of wrongdoing by officials in the 21st district” as “evidence enough” to warrant
the appointment of counsel and a hearing.
Pursuant to T.C.A. § 40-30-206(d), the trial court entered an order noting
the complete lack of a factual basis for relief in the petition and requiring the petitioner
to file an amended petition containing a factual basis for each ground alleged and
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including supporting documents. The petitioner filed an amendment to his petition and
attached as Exhibit A copies of letters to him from David Gatchell and copies of 1994
and 1996 publications apparently stemming from Mr. Gatchell, including a publication
called The Independent.
The amendment alleges that the TBI probe ordered by the governor’s
office and the articles published by The Independent are sufficient to justify the
appointment of counsel, discovery, and a hearing in which to develop the petition and
case further. It also alleges that the petitioner’s trial attorney failed to interview
witnesses, failed to ferret out evidence not disclosed by the prosecution, failed to make
proper objections during the trial, and failed to represent the petitioner adequately and
effectively. The amendment contains no other allegations regarding the petitioner’s
claims.
The documents in Exhibit A contain allegations regarding past litigation in
the 21st judicial district, none dealing with the petitioner’s case. The 1994 article
reports that then Governor Ned Ray McW herter sent charges of wrongdoing made by a
citizens’ group against some 21st judicial district officials to the TBI for review. The
central thrust of the complaints are reported to have dealt with the district attorney’s
office and the Perry County sheriff. No mention is made of further developments, if
any, occurring in the succeeding three and one-half years before the petitioner filed his
post-conviction petition.
The trial court dismissed the petition as amended. It stated that the
petitioner still failed to allege a factual basis for any of the grounds he alleged.
The petitioner asserts that the trial court cannot dismiss an inartfully
drawn petition without providing aid of counsel. He cites a repealed statute and a case
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based upon the repealed Post-Conviction Procedure Act. The record reflects that the
petition was prepared on the form provided by the Tennessee Supreme Court. See
Tenn. Sup. Ct. R. 28 app. A. It is anything but inartfully drawn. The form petition
includes the following admonition:
INCLUDE UNDER EACH VIOLATION YOU CLAIM EACH
AND EVERY FACT YOU FEEL SUPPORTS THIS CLAIM.
EXPLAIN IN DETAIL HOW YOU ARE PREJUDICED BY THE
VIOLATION AND WHY YOU ARE ENTITLED TO RELIEF. BE
SPECIFIC.
As previously noted, the petitioner provided no factual basis for his claims in the
petition. Pursuant to T.C.A. § 40-30-206, the trial court is to give preliminary
consideration to the original petition. Subsection (d) provides as follows:
The 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 state a factual basis for the
grounds alleged shall result in immediate dismissal of the
petition. If, however, the petition was filed pro se, the judge
may enter an order stating that the petitioner must file an
amended petition that complies with this section within fifteen
(15) days or the petition will be dismissed.
The trial court in this case ordered an amendment and expressly advised the petitioner
that the factual basis for his claimed grounds must be provided. The trial court was not
required to appoint counsel for the purpose of providing the factual basis for the
petitioner’s claims.
The petitioner’s amended petition adds nothing in the way of relevant
allegations except for his claim of ineffective assistance of counsel. However, the
allegations of fact as to that claim, taken as true, do not show that the defendant’s
Sixth Amendment right to the effective assistance of counsel was violated. In
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), a capital case, the
United States Supreme Court reviewed an ineffective assistance of counsel claim that
was dismissed without a hearing. The Court determined that the ineffective assistance
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of counsel claim that would merit relief from a conviction or sentence has two
components: (1) that counsel’s performance was professionally deficient and (2) that
the deficiency was prejudicial in terms of rendering a reasonable probability that the
result of the trial was unreliable or the proceedings fundamentally unfair. Id. at 687,
104 S. Ct. at 2064. In holding that the dismissal was appropriate, the Court concluded
that the petitioner failed to show that either prong existed. Id. at 700, 104 S. Ct. at
2071.
In the present case, the bare allegations that counsel failed to interview
witnesses, failed to discover evidence not disclosed by the prosecution and failed to
make proper objections during the trial carry neither a hint of deficient performance by
counsel nor a glint of those actions prejudicing the petitioner at his trial. 1 Therefore, the
petitioner’s allegations fail to state a ground for post-conviction relief. Pursuant to
T.C.A. § 40-30-206(f), the trial court was obligated to dismiss the petition. Absent the
petition alleging a colorable claim for relief, the petitioner was entitled to neither the
appointment of counsel nor an evidentiary hearing.
In consideration of the foregoing and the record as a whole, the judgment
of the trial court is affirmed.
_______________________________
Joseph M. Tipton, Judge
1
The p etitioner ass erts a few additional fa cts in his ap pellate brief, b ut they are too late.
See, e.g., Gary (Ja ke) Ha rris v. State , No. 03C01-9803-CR-00085, Unicoi County (Tenn. Crim. App. Jan.
15, 1999). In any event, most of the allegations do not appear to relate to the claims he made in his trial
court pleadings.
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CONCUR:
__________________________
John H. Peay, Judge
__________________________
Norma McGee Ogle, Judge
6