Timothy R. Powell v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE FILED
AUGUST SESSION, 1998 October 6, 1998

Cecil W. Crowson
TIMOTHY R. POWELL, ) Appellate Court Clerk
C.C.A. NO. 01C01-9708-CR-00379
)
Appe llant, )
)
) DAVIDSON COUNTY
VS. )
) HON. FRANK G. CLEMENT
STATE OF TENNESSEE, ) JUDGE
)
Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE
PROBATE COURT OF DAVIDSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

TIMOTHY R. POW ELL JOHN KNOX WALKUP
Pro Se Attorney General and Reporter
7466 Centennial Blvd.
Nashville, TN 37209 LISA A. NAYLOR
Assistant Attorney General
425 5th Avenu e North
Nashville, TN 37243-0493

VICTOR S. JOHNSON
District Attorney General

BERNARD McEVOY
Assistant District Attorney General
Washington Square, Suite 500
222 2n d Aven ue No rth
Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
 OPINION

The Defen dant, Timothy R. Powell, appeals as of right from the order of the

trial court summarily dismissing his second petition for post-con viction relief. W e

affirm the ju dgme nt of the trial co urt.

Following a jury trial, the Defendant was found guilty of vehicular homicide

by intoxication and rec kless en dange rment. His convictions and his effective

sentence of eight yea rs were a ffirmed b y this court. State v. Timothy R. Powe ll,

C.C.A. No. 01-C -01-950 8-CR -00276 , Davidso n Cou nty (Ten n. Crim. A pp.,

Nash ville, Sept. 19 , 1996).

The Defe ndan t’s first pro se pe tition for post-conviction relief was filed

Septe mber 18, 1995. The trial court initially entered an order dismissing the

petition beca use h is conv iction w as be ing rev iewed on dire ct app eal. The cou rt

subs eque ntly set aside its order of dismis sal and a ppointe d coun sel to represent

the Defendant in his post-conviction proceeding. Counsel filed an amended

petition for post-conviction relief on the Defendant’s behalf on June 1 4, 1996 . In

April 1997, the Defendant filed a petition to remove his counsel and a motion for

appointment of new co unsel. The Defendant also filed a motion to continue and

reset the hearing date for his post-conviction proceeding. On April 17, 1997, the

trial court granted the Defendant’s motion to reset the post-conviction hearing

date and denied the Defendant’s motion that counsel be removed and new

counsel appointed.

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 The post-conviction hearing was then set for June 2, 1997. On June 2,

1997, as reflected in the minutes of the trial court, the Defendant was present

along with his counsel. At that time the court denied the Defendant’s motion for

an interlocutory appeal and for an extraordinary appeal. The court granted the

Defe ndan t’s motion to withdraw his petition for post-conviction relief and granted

the motion by Defendant’s counsel to be allowed to withdraw as counsel for the

Defen dant.

On July 18, 1997, the Defenda nt, acting pro se, filed a lengthy, rambling,

and confusing petition for pos t-conviction relief. His petition alleges generally that

his right to a fair trial was violated by a biase d jury, faulty indictment, selec tive

prosecution, vindictive prosecution, improper jury instructions, mental

competency violations, double jeopardy, and ineffective assistance of coun sel—

all of which rendered his conviction unconstitutional and void.

The trial court found that the petition should be dismissed based upon

Tennessee Code An notated § 40-30-206(d), which provides as follows:

The petition mus t conta in a clear and spec ific state men t of all
grounds upon which relief is so ught, in cludin g full disclosure of the
factual basis of those g rounds. A bare a llegation th at a
constitutional right has been violated and mere conclusions of law
shall not be sufficient to warrant any further procee dings. Fa ilure to
state a factual basis for the g round s alleg ed sh all resu lt in
imme diate 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 comp lies with this sec tion with in
fifteen (15) days or the petition will be dismissed.

Tenn. C ode Ann . § 40-30-206 (d).

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 W e do not believe that the trial cou rt erred by dism issing this petition. The

petition does not contain a clear and specific statement of the grounds upon

which relief is sought, nor does it contain a full disclosure of the factua l basis of

the grounds asserted. The petition does contain many bare allegations of

violations of constitutional rights and many mere conclusions of law. Although

the statute gra nts the trial judge the discretion to allow a pro se petitioner fifteen

days within which to amend the petition to comply with the code section, the

statute does not mandate that the judge do so. The trial court noted that the

Defendant’s former pro se petition for post-conviction relief had been amended

with the assistance of court-appointed counsel, and that subsequently the

Defendant petitioned to remove his counsel and eventually moved to withdraw

the prior post-conviction petition. The Post-Conviction Procedure Act

contemp lates the filing of only one pe tition. Tenn. Cod e Ann. § 40 -30-202(c).

The trial court ordered that the petition be dismissed because it did not

conta in clear a nd sp ecific statements of grounds, including full disclosure of the

factual basis of the grounds, and because it contained bare allegations of

violations of constitu tional rights w ith mere conclusions of law and wa s therefore

not sufficient to warrant further proc eedin gs. In th e proc edura l conte xt of this

case, we be lieve the trial judge acted w ithin his discretionary auth ority.

The judgment of the trial court is affirmed.

____________________________________
DAVID H. WELLES, JUDGE

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CONCUR:

___________________________________
JERRY L. SMITH, JUDGE

___________________________________
JOHN K. BYERS, SPECIAL JUDGE

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