IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
SEPTEMBER 1998 SESSION
October 15, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
KENNETH RUSSELL LEWIS, )
)
Appellant, ) No. 03C01-9802-CR-00054
)
) Hamilton County
v. )
) Honorable Stephen M. Bevil, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
ORDER
The petitioner, Kenneth Russell Lewis, has applied for permission to
appeal from the Hamilton County Criminal Court’s refusal to reopen his post-conviction
case that had previously been dismissed with prejudice.1 He is seeking relief relative to
his second degree murder conviction upon his guilty plea in December 1991 for which
he received a twenty-five year sentence. He asserts that (1) the dismissal of his post-
conviction case with his purported agreement resulted from the ineffective assistance of
counsel, (2) the state has violated its agreement not to oppose parole, and (3) his
attorney in the convicting case was ineffective in representing him. He also has moved
for consideration of “Post-Judgment Facts” by which he seeks to submit for our
consideration medical records that he claims bear upon his issues regarding counsel.
Pursuant to T.C.A. § 40-30-216(c), the petitioner could seek review of the
denial of his motion to reopen by filing an application with this court seeking permission
to appeal. The application may not be granted “unless it appears that the trial court
abused its discretion in denying the motion.” Id.
1
The p etitioner has procee ded in this c ase as if it were an ap peal as o f right, an ap peal to
which he is not entitled. We will treat his brief as an application pursuant to T.C.A. § 40-30-216(c).
The reopening of a post-conviction case is allowed in very limited
situations. There must be either a new constitutional right established with
retrospective application to the petitioner’s case, new scientific evidence that
establishes the petitioner’s actual innocence, or the invalidation of a prior conviction
that was used to enhance the petitioner’s sentence. T.C.A. § 40-30-217(a)(1)-(3). The
petitioner alleges none of these in this case. In this respect, even though his convicting
case counsel’s affidavit supports the petitioner’s claim that the state agreed not to
oppose parole, such a claim does not constitute grounds to reopen his previous post-
conviction case. Also, a claim of ineffective assistance of post-conviction counsel
relative to the post-conviction case being dismissed does not provide the petitioner an
avenue of relief. See House v. State, 911 S.W.2d 705, 714 (Tenn. 1995).
We conclude that the trial court did not abuse its discretion in refusing to
reopen the petitioner’s post-conviction case. In consideration of the foregoing, it is
hereby ORDERED as follows:
(1) The Motion for Consideration of Post-Judgment Facts is denied.
(2) Permission to appeal is denied.
(3) The costs of this cause are taxed against the state.
____________________________
Joseph M. Tipton, Judge
CONCUR:
_________________________
John H. Peay, Judge
_________________________
David G. Hayes, Judge
2