# FILED
July 29, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF CRIMIN AL APPEALS OF TENN ESSEE

AT KNOXVILLE MAY 1997 SE SSION

EARL CRAWFORD, JR., ) ) Appellant, ) No. 03C01-9610- CR-00385

) ) Bradley C ounty v. ) ) Honorable M ayo L. Mash burn, Judge ) STATE OF TENNESSEE, ) (Post-Conv iction) ) Appellee. ) For the Appell ant : For the Appell ee : Earl Dav id Craw

ford, Jr., Pro Se Charles W. Burson TDOC #98108 Attorney Gen eral of Tennessee P.O. Box 279 and (AT TRIAL) Sandy R. C opous Assistant Att orney Gener al of Tennessee Kenneth F. Irvine, Jr. 450 James Roberts on Parkway 606 W. Main St., Suite 350 Nashvil le, TN 37243-0493 Knoxvil le, TN 37901-0084 (ON APPEAL) Jerry N . Estes Distric t Attorney General 203 E. Madison A

venue Athens, TN 37303-0647

OPINION FILE D:____________________
AFFIRMED Joseph M. Tipton Judge1 No ne of t he ple ad ing s f iled at th at tim e a ctu ally re qu es ted the ap po intm en t of co un se l. 2 O P I N I O N
The petitioner, E arl Craw ford, Jr., appeal s as of right from the Bradley County Cr iminal Court ’s dismiss al of his petiti on for post-conv iction rel ief without t he appointment of counsel or the chance to amend the petition. He contends that the trial court erred in dismissi ng the petiti on when it w as incompetently

drafted and that he was entitled to counsel to ame nd the petition. W e affirm the dism issal.

The pe titione r was convicte d in 198 6 of aggra vated kid nappin g, aggravated rape and armed r obbery for w hich he recei ved two life sentences and a thirty- five-year

sentence. On J une 28, 1989, the peti tioner filed a pl eading titl ed “Petition F or Post-Conv iction Rel ief Filing To Be Held in Ab eyance.” The pleading states that the pe titioner in tended to file an “ original petition for Post-Convi ction Reli ef subsequent to the filing of this petition.” In full, the suppo rting facts are as follows:

Petitioner

is servin g two lif e ter ms an d a th irty f ive year term out of Brad leyCounty, C riminal Cour t, and wil l file postconvicti on petition as t o the i mpro per and illeg al methods utilized by the state to secure said sentences against petitioner. He also filed a motion seeking to proceed in forma pauperis in which he al leged that he was unable to pay the cost of the action or to employ counsel. 1 On August 10, 1989, the state respond ed to the petiti on, assertingthat the petiti oner failed to show adequate grounds for failing to file a pet ition within the prescribed statute of limita tions and, in fact, failed to file a timely peti tion before the li mitation perio d expired o n July 1, 1989.2 The record i ndicat es thatthe pet it ioner fi led a peti ti on for wr itof habeas cor pus in May 1991 which the t ri al court t reat ed as a pet it ion f or post -convi cti on rel ief . The t ri al court di smissed the peti ti on as ti me barred in July 1991. The record al so refl ects t hat under thatcase’s docket number, t he tri al court ent ered an or der i n August 1992 rel ati ve to the pet it ioner ’s June 1992 motion t o ascert ain t he status of pleading in which he m entions his init ial peti tion to be held in abeyance. The trial court “di smissed” the motion not ing t hat t he peti ti oner “was a pparent ly under t he impressi on thatsuch a motion would hav e the ef fect of t oll ing t he runni ng of t he stat ute of li mitati ons on any subsequentl y f il ed peti ti on for post convi cti on rel ief ” and t hat t he May 1991 habe as corpus / post- convi cti on peti ti on was deni ed. The record also indicates that the petiti oner filed a petit ion for habeas c orpus relief in federal court i n Janua ry 1996. 3 From that point, the case ap pears to have been dormant until the state filed a mot ion in May 1996 seek ing to dis miss the petiti on for lack of pros ecution. 2

The trial court dismissed the original petition in June 1996 with prejudice for failure to pr

osecute. Also in June, the peti tioner filed a “ Motion for New Trial and the Alternative Notice of Appeal” attaching a petition for post -convic tion relief that

alleged the ineffect ive assistance of counsel and an unconstitutional reasona ble doubt jury instruction . The trial court denied the moti on, reaffirming t he original dismissal.

The petitioner as serts that i f counsel had been appoi nted at the time that his petition was filed, h is claims could have been l itigated years ago. H e also contends that the trial court could not dismiss his incom petently drafted petition without giving him the reasonable oppo rtunity, with the ai d of counsel, to fil e an amendment. See T.C.A. § 40-30-115(b) (repealed 199 5). He concludes with the statement tha t summary dismissal of post-convic tion claims a re disfavored by the Tenness ee courts.
Without going into detail , we agr ee with the basic princ iples of postconv icti on law

upon w hich t he peti tioner reli es. H owever, asthe Tenn essee S upreme Court has noted, the prerequ isite to the p anoply of rig hts and protecti ons that Tennessee statutes pr

ovide for post -convic

tion petitioner

s is that the pro se petition must allege a

colorable c laim. This Court has previously held that a pro se petit ion under the Act is “ held to less stringent standards than formal pleadi ngs drafted by lawyers, and the test is whether it appears beyond doubt that the [p etitioner] can prove no set of f acts in4 support of his claim which would entitled him to relief.” Baxter v. Rose , 523 S.W.2d 930, 939 (Tenn. 1975) (citation omitted). Furthermore, when a color able claim is

presented in a pro se petition, dismissal without appo intm ent of counsel to dr aft a competentpet iti on is rarel y proper. Id. See also Mayes v. State , 671 S.W.2d 857, 858 (Tenn. Crim. App. 1984). If the avai labil ity of reli ef cannot be conc lusiv

ely d etermi ned from a pro se petition and the accompanying records, th e petitioner must be given the aid of counsel. Swanson v . State , 749 S.W.2d 731, 734 (Tenn. 1988). In State v. Smit h , 814 S.W.2d 45, 49 (Tenn. 1991), our supreme cour t stated that a colorable cl aim is one that a lleges fact s sh owi ng t hat t he co nvi cti on or sent enceres ulte d fro m an a bri dge ment of a constitutional right and demon strating that the ground for relief was not previously determined or waived. Un der this stan dard, we bel ieve that th e petitioner’ s allegati on that his conv ictions and s entences wer e obtained by “improper and illegal methods utilized by the state” fails to state even conclusory constitutiona l violations, much less a colorable cl aim.

In fact, it is reasonable to con clude that the petition is what it is titled -- a request to ho ld his filin g of a post-conv iction petit ion in abeya nce, not a post- convicti on petition its elf. Absent ve ry limi ted reasons, none of which are presented in thi s case, the petitioner was not enti tled to toll the statute of limi tations. In any event, his

petition alleged nothi ng of consequenc e. The judgment of the trial cour t is affirmed.

______________________________ Joseph M. Tipto n, Judge CONCUR:

___________________________ Joe B. Jo nes, Pre siding Jud ge

___________________________ Curwood W itt, Jud ge