IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 27, 2001

CLIFTON D. WALLEN v. STATE OF TENNESSEE 

Appeal from the Criminal Court for Hawkins County

No. 7733 James E. Beckner, Judge

No. E2000-02052-CCA-R3-PC

July 25, 2001

The summary dismissal of the petition for post-conviction relief is affirmed because the petitioner

failed to adequately allege ineffective assistance of counsel based upon conflict of interests and the

claim of incompetency to stand trial is waived.

Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed.

JAMES CURWOOD WITT,JR.,J., delivered the opinion of the court, in which JOSEPH M. TIPTON and

ROBERT W. WEDEMEYER, JJ., joined.

Kristi M. Davis, Knoxville, Tennessee, for the Appellant, Clifton D. Wallen.

Paul G. Summers, Attorney General & Reporter; Patricia C. Kussman, Assistant Attorney General;

C. Berkeley Bell, District Attorney General, for the Appellee, State of Tennessee.

OPINION

The petitioner, Clifton D. Wallen, appeals the Hawkins County Criminal Court’s

summary dismissal of his petition for post-conviction relief. After a jury trial, the petitioner was

convicted in the trial court on July 11, 1997 of being an habitual motor vehicle offender and of

evading arrest, Class E felonies, for which he received Range I, consecutive two-year sentences in

the Department of Correction. This court affirmed the convictions and sentences, and our supreme

court denied permission to appeal. See State v. Clifton D. Wallen, No. 03C01-9710-CC-00461

(Tenn. Crim. App., Knoxville, Mar. 17, 1999), perm. app. denied (Tenn. 1999). The petitioner filed

a timely post-conviction petition, and the lower court dismissed it without conducting an evidentiary

hearing. Based upon our review of the record, the briefs, and the applicable law, we affirm the

dismissal of the petition. 

The post-conviction petition claims the following: The state failed to give notice of

its intent to enhance the petitioner’s sentence; the indictment was void because of the allowance of

an amendment; the petitioner was denied counsel during his preliminary hearing; he was entrapped;
1

The post-con viction co urt ruled only that the state’s motion to dismiss the petition “is well taken and the

[petition] . . . is here by dism issed.”

2We are awar e that, in State v. Bradfield, 973 S.W.2d 937, 945 (Tenn. Crim. App. 1997), this court held that

a pro se defendant m ay not collaterally challen ge the effectiveness o f his elbow cou nsel. Because the present issue is

decided on a procedural basis, we do not determine whether a conflict-of-interests-based claim of ineffective assistance

applies to e lbow co unsel.

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his sentences violate principles of due process; and he was incompetent to stand trial. The petition

also claims that the petitioner’s elbow counsel rendered ineffective assistance by failing to

investigate and prepare for trial, failing to explain strategies and defenses to the petitioner, and

failing to object to evidence during trial. The petition also states, without elaboration, that “[t]he

courts where [sic] aware that a conflict existed between the petitioner and [counsel]. The court

refused to appoint a new counsel to represent the defendant.” In his appellate brief, however, the

petitioner restricts his grounds for post-conviction relief to only two – that the petitioner received

ineffective assistance of counsel “in that he was not appointed a new attorney when he advised the

trial court of his conflict with [counsel]” and that, due to a brain condition, the petitioner was

incompetent to stand trial. The petitioner asserts on appeal that the petitioner stated a colorable

claim for relief on these two issues, and the trial court erred in summarily dismissing these claims.

Also, he argues that the trial court erred in making neither findings of fact nor conclusions of law.1

I

First, with respect to the claim of conflict, we note that ineffective assistance of

counsel may result when an attorney’s performance is affected by a conflict of interests. Strickland

v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984). In such a situation, prejudice is

presumed, but only “if the defendant demonstrates that counsel ‘actively represented conflicting

interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.’” Id.

 A mere “potential conflict of interest” serves as no basis for a claim of ineffective assistance of

counsel. Michael Allen Hamlin v. State, No. M1999-00936-CCA-R3-PC, slip op. at 4 (Tenn. Crim.

App., Nashville, Mar. 13, 2000). To establish the claim based upon conflict of interests, the conflict

must be actual and significant, not irrelevant or “merely hypothetical.” Howard Clifton Kirby v.

State, No. 03C01-9303-CR-00074, slip op. at 4 (Tenn.Crim. App., Knoxville, Sept. 28, 1994), perm.

app. denied (Tenn. 1995).

In the present case, however, the petition does not adequately state a claim of

ineffective assistance of counsel. The petition merely asserts that “a conflict existed between the

petitioner” and his “elbow” counsel. The allegation is devoid of any meaningful description of the

conflict. It even fails to articulate a conflict of interests, per se.

Thus, as presented in the post-conviction petition, this claim is unworthy of an

evidentiary hearing and was properly dismissed.2

 Whether a post-conviction claim is of a type or

is presented in such a way as to make it subject to summary dismissal is generally a matter of
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legislative prerogative. Blair v. State, 969 S.W.2d 423, 425 (Tenn. Crim. App. 1997). In creating

our current post-conviction relief law, our legislature mandated that a petition for post-conviction

relief “shall include allegations of fact supporting each claim for relief.” Tenn. Code Ann. § 40-30-

204(e) (1997). “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.” Tenn. Code Ann.

§ 40-30-206(d) (1997) (emphasis added). “Failure to state a factual basis for the grounds alleged

shall result in immediate dismissal of the petition,” although if the petition is filed pro se, the judge,

in lieu of dismissal, may order the amendment of the petition. Id. (emphasis added); see R. Tenn.

Sup. Ct. 28, § 6(B)(4)(a). 

There exists the possibility that a pro se petitioner may have a

meritorious claim dismissed because the petitioner was unable to

communicate it effectively in his or her petition, thus extinguishing

the claim forever. . . . This may at times produce what may appear

to be a harsh consequence resulting from the restrictions in the [1995

Post-Conviction Relief] Act. However, the legislature has established

the guidelines for reviewing post-conviction cases.

Blair, 969 S.W.2d at 425. Even though the statute empowers a post-conviction court to order the

amendment of a petition that contains inadequately described grounds for relief, it does not require

the court to do so, and post-conviction courts act within their discretion when they dismiss such

petitions. Harris v. State, 996 S.W.2d 840, 842 (Tenn. Crim. App. 1999), perm. app. denied (Tenn.

1999). 

In the present case, we find no basis for concluding that the post-conviction court

abused its discretion in dismissing the “conflict”-based claim of ineffective assistance of counsel.

II

Neither did the lower court err in summarily dismissing the claim that the petitioner

was incompetent to stand trial. 

The state argues that this issue was previously determined. See Tenn. Code Ann. §

40-30-206(f), (h) (1997) (a ground for post-conviction relief has been previously determined and

subject to dismissal when a court of competent jurisdiction has ruled on the merits after a full and

fair hearing). The state refers to this court’s direct appeal adjudication of the issue of the petitioner’s

competency to represent himself at trial. See Clifton D. Wallen, slip op. at 12. Apparently basing

his direct appeal argument upon the same mental condition that he now uses as a post-conviction

ground, the petitioner in his direct appeal claimed that he was not competent to represent himself.

It is unclear, however, whether the petitioner in his direct appeal was attacking his competency to

defend a criminal case or whether he challenged his competency to waive representation by an

attorney. See Clifton D. Wallen, slip op. at 12. During the petitioner’s sentencing hearing, the trial

court stated that it had rigorously examined the petitioner in response to his request to represent
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himself and that the petitioner “‘demonstrated at all times a clear mind and ability to represent

[him]self.’” Id. If the trial court actually ruled that the petitioner was competent to waive counsel,

then, previously to the post-conviction, it had determined, in effect, his competency to stand trial,

because competency to waive counsel equates to competency to stand trial. State v. Clyde Turner,

No. W1999-00797-CCA-R3-CD, slip op. at 4 (Tenn. Crim. App., Jackson, May 24, 2000). 

Because it is difficult to discern the precise issue addressed by the trial court, we are

unsure whether a previous determination of the issue has been made. It is of no consequence,

however, to this post-conviction proceeding.

If the issue was not previously determined, it has been waived. It could have been

presented for determination at trial and upon direct appeal. See Tenn. Code Ann. § 40-30-206(f),

(g) (1997) (a ground for post-conviction relief has been waived and subject to dismissal when the

petitioner “personally or through an attorney failed to present it for determination in any proceeding

before a court of competent jurisdiction”). Clearly, at the time of trial and the direct appeal, the

petitioner knew about the mental condition that he later described in his post-conviction petition.

He used the condition as a direct appeal basis for challenging his competency to represent himself.

We see no reason why he could not have previously challenged his competency to stand trial. Thus,

this issue presents no colorable claim for post-conviction relief. See Harris, 996 S.W.2d at 842.

III

We do find, as the state on appeal has conceded, that the trial court erred in failing

to set forth its findings of facts and conclusions of law. See Tenn. Code Ann. § 40-30-206(f), -

211(b) (1997). Non-compliance with the statutory mandate to state findings of fact and conclusions

of law, however, does not require a reversal when the record enables meaningful appellate review.

Rickman v. State, 972 S.W.2d 687, 692 (Tenn. Crim. App. 1997). In the present case, the conflict

issue is resolved in this appeal by the language of the petition, and the competency issue is resolved

by a review of the petition and this court’s opinion in Clifton D. Wallen. Thus, the record enables

meaningful appellate review, and the petitioner is not prejudiced by the laconic nature of the trial

court’s order. 

IV

In conclusion, we find no reversible error and affirm the judgment of the trial court.

___________________________________ 

JAMES CURWOOD WITT, JR., JUDGE