# FILED
March 18, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON JANUARY 1998 SESSION

DANIEL B. TAYLOR, ) ) No. 02-C-01-9703-CR-0 0091 APPELLANT, )

) Shelby County v. ) ) John P. Colton, Jr., Judge ) STATE OF TENNESSEE, ) (Post- Convic tion Rel ief) ) APPELLEE. )

FOR THE APPE LLANT: FOR THE APPELLEE: Daniel B. Taylor, pro se John Knox Walkup Northwest Correcti onal Center Attorney General & Repor ter Route 1, Box 660 425 Fifth Avenue, North Tiptonville, TN 38079 Nashville, TN 37243-0493 Wayne Chastain Kenneth W. Rucker Attorney at Law Assistant Attorney Gener al 66 Monroe Avenue, Suite 804 425 Fifth Avenue, North Memphis, TN 38103 Nashville, TN 37234-0493 (Trial On ly) William L. Gibbons District Attorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103 C. Alanda Horne Assistant District A

ttorney General 201 Poplar Avenue, Suite 3-01 Memphis, TN 38103

OPINION FILED: ____________________________

____ AFFIRMED Joe B. Jones, Pre siding Judge 

### O P I N I O N2 The appellant, Daniel B. Taylor (petitioner), appeals as of right froma judgment of the trial cour t summar ily d ismissi ng his post-conviction action. The trial cour t found the petitioner

“has failed to raise any issue w hich has not been previousl y determined”

and “an evidentiaryhearing is not necessar y for a resolution of any i ssue before this Court.” The petitioner presents four iss ues for review. He contends (a) the dismissal of hi s action on the ground theissues were previously determined violated his c onstitutional rights, (b) the State of Tennessee (state) failed to respon d to each ground alleged i n his petition, (c) the order of dismissal was incompl ete because it does not address a ll of the grounds alleged in his petition, and (d) the dismissal of his petition “resulted in denial of meaningful access to justice, and the fundamental fairness , to an adequate opportunity to present issues fairly wit hi n the post-conviction adv ersary system.” After a thorough review of the record, the briefs submitted by the parti es, and the law gover ning the issues

presente d for revie w, it is the opinion of this court that the judgment of the trial cour t should be affirmed.

I. PRIOR P ROCEEDI NGS On October 6, 1982, the petitioner was convicted of

second degree murder. He was sentenced to confinementfor life in the Department of Corr ection. The petitioner

appealed his conviction and sentence as of right. This court affirmed the defendant’s conv iction and sentence. State v. Taylor , 668 S.W.2d 681 (Tenn. Crim. App. 1984). The supreme court denied the petitioner’s appli cation for permission to appeal on April 2, 1984. The petitioner com menced this po st-conviction act ion on June 10, 1988 by filing a pro se petition. T he trial court summarily dismissed his petition. He appealed the dis missal as of right pro se . This court reversed the judgment of the trial court a n d remanded this action to the trial court for further proceedings. Daniel B. Taylor v.State , Shelby County No. 50, 1989 WL 44867 (Tenn. Crim. App., Jac kson, May 3, 1989). In ruling, Judge Joe D. Duncan, speaking for a unanimous court, stated:

We re verse the judgment of the trial court and the cause is remanded for the a ppointm ent of co unsel, wh o shall prepare and file an a mended pe tition,setting

fo rth t he petitioner’s legitimateissues in a clear and concise manner. His counsel shall include in the amended p etiti on reasons why any of the3 issue s raised have not been waived by petitioner’s failure t o presentthem for determination in his pr ior proceed ings, and, regardingany ofthe issues that were previously determined in the petitioner’s direct appea l, counsel shall assig n legal reasons, if a ny e xist, why these issues should be subject to relitigation. If necessary for a resoluti on of the issues presented in t h e amended petition, the trial cour t m ay hol d an evidentiary hearing on the merits of the peti tion. Slip op. at 6 (emphasis added) (citations omitted).
Since t his case was remanded, the t rial court has appointed thr ee attorneys to represent

the petit ioner. Two of these attorneys were pe rmitted to withdraw due to disagreements

with the petitioner. There have been three amended petition s filed in this
cause. The petitioner has filed an ino rd inate number of pleadings, attachment s to pleadings, legal memoranda, andother miscellaneous documents. These pleadings and documents fill two volumes. They consume 207 pages. T he trial court entered an or der dismissing this po

st-conviction action o n January 24, 1997. The petitioner perfected his appeal on February 11 , 1997. Whil e the petition lis ts a mult itude of grounds, the grounds raised may be reduced to the following classifications: (a) i neffective assistance of counsel, (b) the constitutionalit y of the reasonable doubt instruction, (c) the failure to credit him for co nfinement prior to convicti on, and (d) the failure of local author ities to obtain good t i me credits for him after his conviction.

II.

SUFFICIENCY OF TRI AL COURT’S ORDER The petitioner contends the order of the trial court does not conform to the applicable statutes. He further contends the trial cou r t inappropriately found all of the groundsraised in his petition had been previously det ermined. The petitioner argues all of the grounds had not been previ ously determined.

A. The statutes governing post-convictionactions have alway s required a trial court to4

set forth in an order of dismissal the groundsraised by the petitioner, the findings as to each ground, and the reason why the petitioner is not entitled to an evidentiary hear ing as to each issue. See Tenn. Code Ann. §§ 40-30-206(b) and -211(b) (1997); Tenn. Code Ann. § 40-30-118(b) (Repealed) . In this case, the trial court’s order simply

states the groundshad been previously det ermined. It does not set forth the g rounds or the facts and legal reasons which support the denial of an evidentiary hearing as

to each ground. See Troletti v. Sta te , 483 S.W.2d 755 (Tenn. Crim. App.), cert
. denied (Tenn. 1972); Guy v. State , 4 Tenn. Crim. App. 218, 470 S.W.2d 28, cert
. denied (Tenn. 1971); Little v. State , 4 Tenn. Crim. App. 175, 469 S.W.2d 537, cert
. denied (Tenn. 1971). While the use of the word “shall” makes the duty of the tri al court mandatory, the appellate courts of this state have held the failure to strictly comply with these statutory mandates does not always require a reversal of the ju dgm ent. St ate v. Higgins , 729 S.W.2d 288 (Tenn. Crim. App.), per . a pp . denied (Tenn. 1987); State v. Swanson , 680 S.W.2d 487 (Tenn. Crim. App.), per . app . denied (Tenn. 1984); George v. S tate , 533 S.W.2d 322 (Tenn. Crim. App.), cert
. denied (Tenn. 1975); Webb v. State , 4 Tenn. Crim. App. 723, 475 S.W.2d 228, cert
. denied (Tenn. 1971). In th is case, reversal of the trial court’s judgment is not requir ed. The reasons why th e petiti oner is not entitled to an evidentiaryhearing on the grounds r aised in thepetition are clear on the face of the record. In other words, the record transmitted to this court is sufficient to effectuate a meaningful appellate review on e

ach ground raised in the petition. See State v. Swanson , supra .

B . This court agrees

with the petitioner’s

contention that not all of the grounds r aised have been previously determined. However, this a lone does not warrant the g ranting of an evidentiary hea ring. The bulk of the grounds raised by the

petitioner have been prev iously determined. Other issues have been waiv ed. There are two grounds which are not cognizable in a post-conviction actio n. III. THE GROUNDS FOR RELIEF5 As previously

stated, the grounds raise d by the petitioner in the trial court may be classified as (a) the ineffective assi stanc e of coun sel, (b) the constitutio nality of the reasonable doubt instruction, (c) the failure to credit him for co nfinement prior to convicti on, and (d) the failure of local authorities to obtai n good time credits for him after conviction. These grounds have either been previously determined, waived, or are not cognizable in a post-conviction acti on.

A. The 1995 amendmentto the Post-Convictio n Procedure Act prohibits the granting of relief when a

ground has been previous ly determined or wai ved. See Tenn. Code Ann. §§ 40-30-206(f) and -210(f). The Act does not define the phrase “previ ously determined.” As to the ter m “waive ,” T enn. Code Ann. § 40-30-210(f) states: “There is a rebutta ble presumption that a ground for r elief not raised before a court of competentjurisdiction in which the ground could have been presented is waived.” See Tenn. Code Ann. § 40-30- 112(b)(2) (Repealed). This court is of the opinion the body of law created pursuant to Tenn. Code Ann. § 40-30-112 (Repealed) regarding grounds“previous ly determi ned” sati sfies th e legislat ive inte nt of the 1995 amendment to the Act. As this cour t said in Workman v. State , 868 S.W.2d 705, 708 (Tenn. Crim. App.), cert
. denie d , 51 0 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994):

A ground for relief has been “pr eviously determined”

when “a court of competent jurisdiction has r uled on the merits [of

the grounds] after a full and fair hearing.” Tenn. Code Ann. § 40- 30-112(a) [repealed]. A ground is deemed to be “previously determined”when the petitioner appealed as of right from his conviction and the issue was addressed by the appellate court. Rhoden v. State , 816 S.W.2d 56, 61, 62, 63, 65 (Tenn. Crim

. App. 1991); Caruthers v. State , [814 S.W.2d 64, 69-70 (Tenn. Crim. App. 1991)]; Cole v. State , 798 S.W.2d 261, 264-265 (Tenn. Crim. App. 1990). Also, a ground is “previo usly determined”when a p etiti oner raises a ground in a postconviction proceeding, and the ground is address ed on the merits following an evidentiary heari ng. Holiday v. State , 512 S.W.2d 953, 958 (Tenn. Crim. App. 1972). See Caruthers v. State , supra ; Garr ett v. State , 534 S.W.2d 325, 327 (Tenn. Crim. App. 1975); Doyle v. State , 3 Tenn. Crim. App. 171, 173, 458 S.W.2d 637, 63 8 (1970).6 This court must now address each ground to

determine if the petitioner is entitled to an evidentiary h earing.

B. The issue a lleging th e deprivat ion of hi s constit utional right to th e effec tive assistance of counsel hasbeen previously deter mined. The attorney

who represented the petitioner

at the hearing of the motion for a new trial and on appeal did not represent the petitioner during the pr ior proceedings. The new attorney raisedthis issue in the motion fora new trial, and this i ssue was raised on appeal

. Taylor , 668 S.W.2d at 685. In Taylor , this court said:

Finally, the defendant insists that his trial counsel did not meet the standard requir ed by Baxter v. Rose , 523 S.W.2d 930 (Tenn. 1975). At the request of the defendant’s prese nt attorney , a hearing was had w ith regard to this is

sue on th e motion for a new tr ial. Only t he defend ant and trial counsel testified

. The defendant made numerous complaints concerning his attorney’s serv ices. They were all

denied or explained by the testimony of the attor ne y. The trial judge resolved these i ssues of fact in f avor of the State. The evidence does no t preponderate against the trial judge’s findings of fact and his findings are therefore bin ding on this court. 668 S.W.2d at 685 (citatio ns omitted).
The ground alleging the reasonable doubt instruction has been waived. It was not raised on direct appeal. The defendant has nev er attempted to explain w hy this issue should not be considered waived.In other words, the peti tioner has failed to rebut t h e presumption of waiver. Tenn. Code Ann. § 40-30-210(f ). The ground allegin g the petit ioner was never g iven credit for the time he was confined in the Shelby Coun ty Jail may not be litiga ted in a post-con viction proceedin g. Nevertheless, an exhibit to the petition specifically

states the petitioner w

as given credit for the time he cl aims is due h im. The petitioner is not entitl ed to litigate the grou nd alleging the denial of goo

d time creditswhile he was co nfined in the Shelby County Jail after his conviction. Thi s issue must be litigatedpursuant tothe Uniform Administrativ e Procedures Act, Tenn. Code Ann. §§ 4-5-101, et

. seq . State v. James A. Vaugh n , Sumner County No. 01-C-01-9308-CR-7

00258, 1994 WL 53 845 (Tenn. Crim. App., Nashville, February 24, 1994).

IV. The petitioner raises tw o additional issues. He c ontends the State o f Tenne ssee failed to respond to each of the allegations cont ained in the petition. This did not prejudice the petitioner in any manner. Moreover, any deficiency in this regard does not entitle the petitioner to an evidenti ary hearing or other relief. The petitioner contends the dismissal of his post-convictionaction has resulted in the denial of “meaningful access to justice, and . .. fundamental fairness” as wel l as “an adequate opportunity to present issues.” This court disagrees. A trial court has thelegal right to summarily dismiss a post-conviction action when it is clear on the face of the record the petitioner is no t entitled to rel ief because t he gr ounds alleg ed have been previously determined, waived, or cannot be l itigated i n a post-co nviction action. Workman , 868 S.W.2d at 708; Caruthers , 814 S.W.2d at 69-70.

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________________

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_ JOE B. JONES, PRESID ING JUDGE
CONCUR:

_____________________________________ PAUL G. SUMMERS, JUD GE

_____________________________________ DAVID G. HAYES, JUD GE