IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
MARCH 1998 SESSION
March 31,1998
Cecil W. Crowson
JAMES H. HURTCH, ) Appellate Court Clerk
)
Appellant, ) No. 01C01-9704-CR-00145
)
) Davidson County
v. )
) Honorable J. Randall Wyatt, Jr., Judge
)
STATE OF TENNESSEE, ) (Post-Conviction)
)
Appellee. )
For the Appellant: For the Appellee:
James H. Hurtch, Pro Se, #103238 John Knox Walkup
R.M.S.I. Attorney General of Tennessee
7475 Cockrill Bend Rd. and
Nashville, TN 37209-1010 Ellen H. Pollack
(AT TRIAL) Assistant Attorney General of Tennessee
450 James Robertson Parkway
Gregory D. Smith Nashville, TN 37243-0493
One Public Square, Suite 321
Clarksville, TN 37040 Victor S. Johnson, III
(ON APPEAL) District Attorney General
and
Paul DeWitt
Assistant District Attorney General
Washington Square, Suite 500
222 2nd Avenue North
Nashville, TN 37201-1649
OPINION FILED:____________________
AFFIRMED
Joseph M. Tipton
Judge
OPINION
The petitioner, James H. Hurtch, appeals as of right from the Davidson
County Criminal Court’s summary dismissal of his third petition for post-conviction relief.
The defendant is presently serving a twenty-two-year sentence in the custody of the
Department of Correction resulting from his 1992 convictions for aggravated robbery,
theft, reckless endangerment, violations of the driver’s license law, evading arrest and
resisting arrest. The petitioner’s underlying claim is that post-conviction appellate
counsel for his second petition was ineffective by failing to raise issues on appeal to this
court and by failing to appeal the case to the Tennessee Supreme Court. The trial
court dismissed the petition because the defendant does not have the right to the
effective assistance of counsel in a post-conviction proceeding. See House v. State,
911 S.W.2d 705, 712 (Tenn. 1995). The petitioner acknowledges that there is no right
to the effective assistance of post-conviction counsel, but he contends that House
should be reversed. However, not only are we bound by House, there is no justiciable
claim presented under the 1995 Post-Conviction Procedure Act.
In 1992, the petitioner was convicted of aggravated robbery, theft,
reckless endangerment, violations of the driver’s license law, evading arrest and
resisting arrest. The convictions were affirmed on appeal. State v. James Howard
Hurtch, No. 01C01-9209-CR-00267, Davidson County (Tenn. Crim. App. Feb. 25, 1993)
(affirmed pursuant to Rule 20, Tenn. Ct. Crim. App.), app. denied (Tenn. June 1, 1993).
On August 9, 1994, the petitioner filed his first petition for post-conviction relief. After a
hearing, the petition was denied, and the denial was affirmed on appeal. State v.
James Howard Hurtch v. State, No. 01C01-9411-CR-00399, Davidson County (Tenn.
Crim. App. July 26, 1995). A second petition was filed on February 27, 1996, and the
trial court summarily dismissed the petition.
2
The present petition alleging the ineffective assistance of post-conviction
counsel was filed on July 26, 1996. The petitioner did not file a motion to reopen as
required by the statute. See T.C.A. §§ 40-30-202(c) and -217. Rather than summarily
dismissing the petition on grounds that it did not state cognizable claims for reopening a
post-conviction proceeding, the trial court considered the petition on the merits and
concluded that the petition should be dismissed without a hearing as it did not state
proper grounds for post-conviction relief.
The Post-Conviction Procedure Act of 1995 governs all petitions filed after
May 10, 1995. See T.C.A. §§ 40-30-201--222. The Act provides:
This part contemplates the filing of only one (1) petition
for post-conviction relief. In no event may more than one (1)
petition for post-conviction relief be filed attacking a single
judgment. If a prior petition has been filed which was resolved
on the merits by a court of competent jurisdiction, any second
or subsequent petition shall be summarily dismissed. A
petitioner may move to reopen a post-conviction proceeding
that has been concluded, under the limited circumstances set
out in § 40-30-217.
T.C.A. § 40-202(c). A claim based upon the ineffective assistance of post-conviction
counsel is not a proper ground for reopening a post-conviction proceeding. See T.C.A.
§ 40-30-217(a)(1)-(4). Therefore, the dismissal of the third petition for post-conviction
relief was proper.
In consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.
Joseph M. Tipton, Judge
3
CONCUR:
David H. Welles, Judge
Joe G. Riley, Judge
4