### IN THE CO URT OF CR IMINAL APPEALS OF T ENN ESSEE AT JACKSON

MARIO JO SE RI CHARDS v. ST ATE OF TE NNESSEE

Appeal f rom the Circ uit Court for Tip ton County No. 3429 Joseph H. Walk er, III, Judge

No. W2009-00863-C CA-R 3-P C - F iled Septem ber 1, 2009

The petitioner, Mario J ose Richards, was convicted of second deg ree murder in 1998 and sentenc ed
to twenty y ear s as a violent offe nder. Appare ntly , he filed two petitions for post-conviction relief in 2001 and a third, the dismiss al of which is the basis for this appea l, in 2009. The post-conviction
court dismiss ed the petition without a hear ing. The State has filed a motion reque sting that this court aff irm the l ower court’s den i al of relief pursuant to Rule 20 of t he Rules of t he C ourt of C riminal Appea ls. We c onclude that the State’ s motion i s well-take n and, ac cording ly , aff irm the denial of post-conviction re lief.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed P ursuan t to Rule 20, Rules of the Court of Crim inal Ap peals

A L A N E. G L E N N , J
., delivere d the opin i o n o f t h e court, in which J .C. M C L I N and C A M I L L E R. M C M U L L E N , J J ., joined.

Mario Jose Ri char ds, Henning , Tenne ssee, Pro Se.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; and J ohn H. Ble dsoe, Senior Counsel, for the appellee , State of Tenne ssee.

MEMORAN DUM OP INION

The petitioner’s complicated path, leading to this appea l, was set out by the post-conviction court in its order dismissing the petition:

The [petit ioner] filed a Petition for Post Conviction Relief on April 1, 2009.

The [petit ioner] was char g ed with First Deg ree Murder
, and found g uilty by a jury of S econd Deg ree Murder on April 9, 1998, and re ceive d a sente nce on Ma y 6, 1998, of 20 y ear s as a violent offe nder. The [petit ioner] desired to w aive appea l, and on J uly 27, 1998, a hear ing was conducte d wher ein the [petit ioner] testified thathe was satisfied with the service s of his attorney and waived appea l. He executed a

written wa iver of a

ppeal.

On Fe bruar

y 3, 2000, he filed a Motion for Appea l as of Right. T h i s was eig hteen months afte r appea ring in Court and waiving his rig ht to appea l. The Court
enter ed an Orde r deny

ing his delay ed appea l, and a copy was sent to [t he petitioner]. He did not appe al the denia l.

On April 17, 2001, he appar ently filed ag ain for delayed appea l. On J une 20, 2001, he appar ently filed a petition alleg ing that failure to f ile an appea l c onstitut es ineffe ctive assistance of counsel. On September 14, 2001, he filed ag ain for delay ed
appea l. On November

1, 2001, he filed a

petition for [p] ost [ c]onviction [ r]elief.

The court lacks the j u ri s diction to hear the claim for post-conviction relief
, since claims for post-conviction must be filed within one y ear

. T.C.A. 40-30-202. Even if the court treats the petition as an amendment to the J une 20, 2001 petition alleg ing ineffe ctive assistance g rounds, the [petit ioner] is in no better position, as the first petition was not filed with[in] one y ear of the sente nce be coming final.

The Court has examined the petition, and t h e en t i re file, and finds that the [petit ioner] was not unconstitutionally denied appea l so as to g ain appea l of the jury verd i ct , per T.C.A. 40-30-213. There was a hear ing in J uly 1998 wher e the [petit ioner] was appra ised [si c] of his rig ht to appea l, and he testified that he wished
to waive his rig ht to appea l. This Court has n o au t h o ri t y to just g rant a delay ed
appea l, as stated in the oth er order s enter ed here in. Petition for Post Conviction Relief wa s filed Novembe r 1, 2001 and dismissed.

I t is there fore ORDERED that the petitions are dismiss ed. The petitions for relief from conviction are dismiss ed. The Petition for Post Conviction Relief is dismiss ed, per

T.C.A. 40-30-202.

The petitioner’s issues on appea l are his claims that the post-conviction court err ed: (1) by dismiss ing the petition “without first providing appointed counsel to ful l y d ev el o p stated claims, investigate any additional claims, cer tify there are none af

ter c onductingsaid investigation, and to rende r any nece ssary amendments to the petition”; and (2) by dismiss ing the petition “without first providing the reque sted criminal transcr ipts motioned for to and from [si c] trial [c] ourt by petitionerappellant f

or purpose s of this appea l.”

I n his brief, the petitioner responds to the deter mination of the post-conviction court that he has filed a

previous petition for post-c onviction relief:

On M arch 25, 2008, [t he] trial court iss ued [ an] order dismiss ing [ the petit ioner’s]

cause o f action – without appointment of counsel – no opportunity to make any

-2-amendments – without any evidentiar y hear ing – and witho u t cl ea rly stating in the order of di smissal whether the Court considere d the petition as being a petiti on for Post-Convi ction Relief, or for Writ of Habe as Co r pus, in which both require differ ing levels of proof of claims and o f appea l methods. As a few prime examples of the vastly differ ing methods involved: I f t he C ourt dec i d ed the petition was a petition for post-conviction relief

– p eti tioner should now be using petition to re- open his post-conviction to prese nt new claims instead of this curr ent initial and first petition for post-c onviction relief, and on the ot her hand had the Court de cided the pe tition

wa s a petition for issuance of writ of habea s corpus that would also mean t h e petitioner has never filed his first petition for post-conviction relief and is curr ently

corr ectly pursuing his available avenue for possible relief as his initial peti t i o n for post-conviction re lief.

Adopting the petitioner’s rea soning, this latest filing by the petiti o n er may be viewed as a new pe tition for post-c onviction r elief, as a motion to reope n his pr evious petition, or as a petition for writ of habea s corpus. Reg ardle ss of which view is adopted, howeve r, we conclude
, as we will explain, that the recor d supports the post-conviction cour t’s dismiss al of the pe tition.

First, if we treat this matter as a new petition f or post-conviction relief

, it is barr ed beca

use the petitioner is limit ed to a single petition for post-conviction relief per judgme nt. L eslie v. State, 36 S.W .3d 34, 37 (Tenn. 2000) (citing Tenn. Code Ann. § 40-30-202( c) (1997))

. The petition cannot proce ed as an attempt to reope n his previous petition for post-conviction relief beca use it fails to alleg e a g round upon which such petition may be g rante d. See Tenn. Code Ann. § 40-30-117 (2006);

see also Tenn. Sup. Ct. R. 28, § 2(C). Additionally
, this late st filing would be unsustainable, for it would be an attempt to reope n a previous petition, which was untimely

. I f the complaint is viewed

as a petition for writ o f h ab ea s co rp u s relief
, it likewise cannot be sust ained, for s uch relief is not available for a claim of ineffe ctive assistance of counsel. See, e.g ., Passare lla v. State, 891 S.W .2d 619, 627 (Tenn. C ri m

. App. 1994) (cla ims of ineffe ctive assistance of counsel rende r a judgme nt voidable, not void).

Acc ording ly
, we conclude that the rec ord supports the dismiss al of the petition by the postconviction cour

t.

CONCLUSION

When an opinion would have no p re ce d ential value, the Court of Criminal Appea ls may aff irm the judgme nt or action of the trial court by memorandum opinion when the jud gm ent is

re ndere d or the action taken in a proce eding without a jury and such judgme nt or action is no t a deter mination of guilt, and the evidenc e does not preponde rate ag ainst the finding of the trial judge

. See Tenn

. C t

. Crim. App. R. 20. We conclude that this case satisfies the criter ia of Rule 20. Acc ording ly , it is ordered that the State’s motion is gra nted. The judg ment of the post-conviction court is af firmed in ac corda

nce w ith Rul e 20, Rules of the Court of Criminal Appe als.

-3-___________________________________ AL AN E. GL ENN, JUDGE

-4-