IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs November 22, 2005

WILLIAM E. EAKES, III v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Davidson County

No. 99-A-36 Seth Norman, Judge

No. M2005-01016-CCA-R3-PC - Filed January 23, 2006

This is an appeal as of right from the summary dismissal of a petition for post-conviction relief. The

trial court dismissed the amended post-conviction petition because the court found the petition was

not verified under oath and failed to include the factual basis upon which relief was sought. We

affirm the judgment of the trial court. 

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

DAVID H. WELLES, J., delivered the opinion of the court, in which DAVID G. HAYES and JERRY L.

SMITH, JJ., joined.

Ryan Caldwell, Nashville, Tennessee, for the appellant, William E. Eakes, III.

Paul G. Summers, Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney General;

Victor S. Johnson, District Attorney General; and Dan Hamm, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

FACTS

The record reflects that the Petitioner, William E. Eakes, III, was indicted by a Davidson

County grand jury in January of 1999 on one count of first degree felony murder and one count of

second degree murder. See Tenn. Code Ann. §§ 39-13-202 and 39-13-210. The Petitioner was

found guilty by jury verdict of both offenses, and the trial court merged the second degree murder

conviction into the first degree felony murder conviction and sentenced the Petitioner to life

imprisonment. See State v. William E. Eakes, III, No. M2001-01420-CCA-R3-CD, 2003 WL

21523244, at *1 (Tenn. Crim. App., Nashville, July 1, 2003). The Petitioner’s judgment was

affirmed on direct appeal by this Court in July of 2003, and the Tennessee Supreme Court denied

his application for permission to appeal in December of 2003. See Id. 
The petition initially states that the petitioner is proceeding “by and through his [named] attorney.” Elsewhere 1

in the petition, the petitioner states he is not “currently represented by counsel.” Later, the petition requests that an

attorney be appointed to represent the petitioner. Thereafter the petition alleges that a named attorney, different from

the attorney initially named, has assisted him in the preparation of the petition. The petition does not contain the name

or signature of an attorney purporting to represent the petitioner.

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The Petitioner timely filed his original petition for post-conviction relief in December of

2004. In his original petition, filed with some assistance from an attorney, the Petitioner alleged that 1

he was “denied the effective assistance of counsel at trial,” but failed to provide any factual basis for

this claim. In January of 2005, the post-conviction court issued an order granting the Petitioner thirty

days in which to amend his petition for post-conviction relief and resubmit it to the court. In this

order the court found that the Petitioner’s original petition for post-conviction relief failed to “specify

allegations upon which such claim [of ineffective assistance of counsel] is based,” and was not

verified under oath. 

The Petitioner submitted an amended petition for post-conviction relief within the allotted

time. The amended petition was filed as a “Pro Se” petition. On appeal the Petitioner concedes that

he received the assistance of an attorney. In March of 2005, the trial court issued an order dismissing

the Petitioner’s amended petition for post-conviction relief, stating:

The petitioner in this cause has timely filed a Petition for Post-Conviction

Relief with the Davidson County Criminal Court Clerk on December 20, 2004.

However, with regard to his claim of ineffective assistance of counsel, he did not

specify allegations upon which such claim is based. The petitioner was then allowed

30 days to submit a verified petition stating specific grounds upon which he may base

a claim for ineffective assistance of counsel. On February 23, 2005, he submitted yet

another unverified, general petition. . . . 

The petitioner’s second filing of the Petition merely restates the allegations

of the initial Petition and does not include any specific factual basis to bolster his

argument. 

Moreover, petitions for post-conviction relief must be verified under oath.

. . . Petitioner’s second filing does not meet the standard [of being verified under

oath].

Based on the foregoing analysis, it does not appear as though the petitioner

has followed the statutory prescribed elements requisite to the proper filing of a

petition for post-conviction relief. As a result, the petitioner’s Petition for PostConviction Relief is accordingly respectfully dismissed.

This appeal followed. 

ANALYSIS

The Petitioner now argues that the post-conviction court erred in summarily dismissing his

post-conviction petition without the appointment of counsel and without an evidentiary hearing. To

support this claim, the Petitioner first argues that his amended petition did include both the grounds
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upon which he sought relief as well as a sufficient factual basis for those grounds. Second, the

Petitioner argues that the post-conviction court “should have” determined that he was indigent and

appointed him counsel to assist in the drafting of his post-conviction petition. Finally, the Petitioner

argues that, because he submitted his petitions pro se, this Court should overlook the fact that neither

his original nor amended petition was properly verified under oath. We find all three of the

Petitioner’s arguments unpersuasive.

Tennessee’s Post-Conviction Procedure Act, codified in Tennessee Code Annotated section

40-30-101 et seq., outlines the statutory elements required for properly filing for post-conviction

relief. These statutes mandate that a petition for such relief

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. A bare

allegation that a constitutional right has been violated and mere conclusions of law

shall not be sufficient to warrant any further proceedings. Failure to state a factual

basis for the grounds alleged shall result in immediate dismissal of the petition. If,

however, the petition was filed pro se, the judge may enter an order stating that the

petitioner must file an amended petition that complies with this section within fifteen

(15) days or the petition will be dismissed.

Tenn. Code Ann. § 40-30-106(d). Additionally, “[t]he petitioner shall include allegations of fact

supporting each claim for relief set forth in the petition,” and “[t]he petition and any amended

petition shall be verified under oath.” Tenn. Code Ann. § 40-30-104(e). 

In this case, the Petitioner first argues that his amended petition does contain “specific factual

allegations,” citing to the three conclusory statements he added to his claim of ineffective assistance

of counsel in his amended petition. The Petitioner argues that these three one-line statements, in

which he alleges his trial counsel 1) “failed to adequately investigate prior to trial,” 2) “did not

prepare a clear theory of defense,” and 3) “left petitioner with no defense to the charges,” are “facts”

that satisfy the statutory requirements for a valid post-conviction petition. We disagree. 

In this case the trial court’s first order informed the Petitioner that he was required to allege

a clear and specific statement of the grounds upon which he sought relief and provide a full

disclosure of the factual basis of those grounds in his petition for post-conviction relief. The court

then, within its discretion, granted the Petitioner thirty days to amend his petition accordingly.

Nevertheless, the Petitioner submitted an amended petition that again failed to contain any factual

basis, much less a “full disclosure of the factual basis” of the grounds upon which he sought relief.

See Tenn. Code Ann. § 40-30-106(d). A fair reading of the record reveals that the “facts” the

Petitioner relies on are simply three one-line allegations attacking his trial counsel, and amount to

nothing more than “bare allegation[s] that a constitutional right has been violated.” Id. Thus, his

claim that his Sixth Amendment right to effective assistance of counsel was violated is a “mere

conclusion[] of law.” Id. The petition does not suggest the favorable facts that an “adequate”

investigation would have uncovered, nor does it suggest the “theory of defense” that should have
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been prepared. The petition as amended does not suggest how the Petitioner may have been

prejudiced by his counsel’s actions or inactions. Because the Petitioner failed to state any factual

basis to support the allegations in his post-conviction petition, he was not entitled to an evidentiary

hearing. Rather, “immediate dismissal of the petition” was warranted. Id. 

We also note that the Rules of the Tennessee Supreme Court concerning post-conviction

procedure, as well as a significant body of case law, support the post-conviction court’s dismissal

of the Petitioner’s petition under the facts of this case. Tennessee rules require a petition for postconviction relief to contain “specific facts supporting each claim for relief asserted by petitioner.”

Tenn. R. S. Ct. 28, § 5(E)(4). Furthermore, the “Effect of Failure to Comply With Rule” is that “[a]

petition may be dismissed without a hearing if it . . . does not contain specific factual allegations.”

Tenn R. S. Ct. 28, § 5(F)(3). 

In Arnold v. State, 143 S.W. 3d 784 (Tenn. 2004), our supreme court considered whether a

pro-se petition for post-conviction relief presented a “colorable claim.” In Arnold, the petition

alleged that:

Petitioner from Arrest to Trial and Re-Trial was subject to The News Media [sic]

Constant Exploitation of said Charges and No fair trial could ever be had in Carter

County and Counsel of Reco[r]d Did Nothing to prevent same to the harms way of

Petition[er] in his Day in Court, and Unjust Verdicts, and Illegal Imprisonment for

same.

. . .

Petitioner after Ineffective Assistance of Counsel was found Guilty after a mini-trial

of a day or two a mockery of Justice itself as it should have taken weeks to pick a

Jury in a Town already since His Arrest. . . .

Arnold, 143 S.W. 3d at 786.

In concluding that this petition did state a colorable claim, our supreme court reasoned as

follows:

Arnold’s petition alleges that the media coverage involving his child rape charges

was both constant and exploitative. Despite this adverse publicity, Arnold’s trial

attorney failed to request a change of venue and failed to adequately question

potential jurors to determine the extent to which they were subjected and influenced

by this constant and exploitative media coverage. Arnold links his convictions and

his consecutive sentences to his attorney’s deficient performance and suggests that

a fair trial was impossible under the circumstances. Specifically, he alleges that the

jury selection process and the length of the trial demonstrate a “mockery of Justice
We note that the Petitioner was declared indigent by the post-conviction court in June of 2005 and appointed 2

counsel to represent him in this appeal. 

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itself.” Under these circumstances, we hold that the petition states a colorable claim

and that the post-conviction court erred in dismissing the petition.

Arnold, 143 S.W. 3d at 787.

Unlike the petition in Arnold, the petition herein does not include a factual basis supporting

the grounds for relief. The petition contains no factual assertions in any way directed toward or

related to the facts and circumstances presented at the trial of the Petitioner. Even though the

Petitioner was given the opportunity to amend the petition, he nonetheless failed to include a “full

disclosure of the factual basis” of the grounds upon which he sought relief. See Tenn. Code Ann.

§ 40-30-106(d). His assertions are simply conclusory allegations of inadequate representation.

This Court has previously upheld summary dismissals of petitions for post-conviction relief

where a petition “did not contain clear and specific statements of grounds, including full disclosure

of the factual basis of the grounds,” but rather “contained bare allegations of violations of

constitutional rights with mere conclusions of law.” Powell v. State, 8 S.W.3d 631, 633 (Tenn.

Crim. App. 1998). See also Pewitt v. State, 1 S.W.3d 674, 676 (Tenn. Crim. App. 1999) (upholding

summary dismissal of a post-conviction petition after finding that “[t]he petitioner’s amended

petition adds nothing in the way of relevant allegations except for his claim of ineffective assistance

of counsel. However, the allegations of fact as to that claim, taken as true, do not show that the

defendant’s Sixth Amendment right to the effective assistance of counsel was violated.”); Harris v.

State, 996 S.W.2d 840, 842 (Tenn. Crim. App. 1999) (upholding summary dismissal of a petition

for post-conviction relief after determining that “[a]lthough the petition alleges the ineffective

assistance of counsel, it does not contain a full disclosure of the factual basis of the grounds asserted.

The petition instead contains bare allegations of violations of constitutional rights and mere

conclusions of law.”). Accordingly, we conclude that the trial court did not err in summarily

dismissing the Petitioner’s petition for post-conviction relief based on its finding that the petition

failed to contain a full disclosure of the factual basis upon which the grounds for relief were based.

The Petitioner also argues that the trial court erred because it “should have determined

[Petitioner’s] indigency status and appoint[ed] counsel.” We are unable to directly address this issue

because the record on appeal fails to contain a petition for a declaration of indigency or any evidence

supporting such a claim. Nevertheless, the Petitioner’s argument fails because it is well established 2

that “‘a clear but patently non-meritorious petition [for post-conviction relief] may be dismissed

summarily,’ without the appointment of counsel or an evidentiary hearing.” Rickman v. State, 972

S.W.2d 687, 692 (Tenn. Crim. App. 1997) (citing Martucci v. State, 872 S.W.2d 947, 949 (Tenn.

Crim. App. 1993)). See also Pewitt, 1 S.W.3d at 675-76 (holding that “[t]he trial court was not

required to appoint counsel for the purpose of providing the factual basis for the petitioner’s claims”
We note that it appears that neither the petition nor the amended petition was actually signed by the Petitioner;

3

rather, the petition is signed by someone else “for the petitioner.”

We note that in his amended petition, the Petitioner made a statement resembling a verification, but did not

4

personally sign the verification (or the petition itself). Furthermore, the amended petition was not verified “under oath.”

This Court has previously held that the verification under oath requirement for a post-conviction petition generally

requires the document to be “notarized by a notary public or acknowledged in the presence of an official.” Charles

Montague v. State, No. E2000-01330-CCA-R3-PC, 2001 WL 1011464, at * 1 (Tenn. Crim. App., Knoxville, Sept. 4,

2001). Accordingly, the Petitioner’s “verification” was not under oath and therefore failed the statutory requirements

for a valid post-conviction petition. See Tenn. Code Ann. § 40-30-104(e). 

“No pro se petition shall be dismissed for failure to follow the prescribed form until the court has given the 5

petitioner a reasonable opportunity to amend the petition with the assistance of counsel.” Tenn. R. S. Ct. 28, § (B)(4)(b).

We note that the Tennessee Rules of the Supreme Court define a pro se petition in the context of a post6

conviction proceeding as follows: “A pro se petition is one filed by a petitioner without the benefit of counsel.” Tenn.

R. S. Ct. 28, § 2(A). In this case, the Petitioner admitted he received the “assistance” of an attorney. However, because

(continued...)

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after granting the pro se petitioner additional time to submit an amended petition). Thus, the trial

court in this case did not err in electing not to appoint counsel to assist the Petitioner with his

amended post-conviction petition. 

In his final argument, the Petitioner, while not denying that his amended petition was not

verified under oath as required by statute, nevertheless asserts that because he submitted his petition

pro se he should be “held to less stringent standards” than those required of attorneys. Therefore,

the Petitioner argues, the trial court erred in summarily dismissing his petition because it was not

verified under oath. We disagree. 

3

As stated above, a post-conviction petition and any amended petitions must be verified under

oath. Tenn. Code Ann. § 40-30-104(e). We have previously held that “[i]t is imperative that factual

allegations be made and that the petition be verified as true under oath.” Hutcherson v. State, 75

S.W.3d 929, 931 (Tenn. Crim. App. 2001). The purpose of the verification under oath requirement

is to “deter or to reduce intentionally false allegations primarily made by petitioners by exposing

them to aggravated perjury charges,” ultimately resulting in more efficient use ofthe judicial system.

Sexton v. State, 151 S.W.3d 525, 530 (Tenn Crim. App. 2004). Accordingly, we have held that

“[w]hether prepared by a petitioner or by counsel, the petition and its amendments must be verified

under oath.” Id. 

In this case, the Petitioner did not verify under oath his original petition or his amended

petition for post-conviction relief. The Petitioner argues that he should be judged by “less stringent 4

standards” because he submitted his petitions pro se, citing Allen v. State, 854 S.W.2d 873, 875

(Tenn. 1993) and Tenn. R. S. Ct. 28, § 6(B)(4)(b). The Petitioner, while professing to be pro se, 5

has nonetheless admitted in his appellate brief that he received the “assistance of [an] attorney” in

preparing both his original and his amended post-conviction petitions. Furthermore, this Court has 6
(...continued) 6

the Petitioner did not have formal counsel of record, we will, in our consideration of the claims in this appeal, consider

his amended post-conviction petition as submitted pro se. 

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previously questioned the continued applicability of Allen, noting that it interpreted a former version

of the Post-Conviction Procedure Act, which has subsequently been amended to become more

stringent in its requirements. See Blair v. State, 969 S.W.2d 423, 424 (Tenn. Crim. App. 1997). 

Regardless, as stated above, recent case law mandates that whether “prepared by a petitioner” i.e.,

pro se, or “by counsel,” a post-conviction petition and its amendments “must be verified under oath.”

Sexton, 151 S.W.3d at 530. 

Additionally, as the State asserts in its appellate brief, the trial court in this case did not

immediately dismiss the faulty post-conviction petition, but rather gave the Petitioner “reasonable

opportunity” to amend his petition. Tenn. R. S. Ct. 28, § 6(B)(4)(b); see also Tenn. Code Ann. § 40-

30-106(d). Furthermore, the Petitioner utilized this opportunity to submit an amended petition,

which he again completed with the “assistance” of an attorney. Accordingly, we hold that the trial

court did not err by dismissing the petition based upon the Petitioner’s failure to verify his petition

under oath.

In summary, the post-conviction court ordered the Petitioner’s amended petition for postconviction relief to be dismissed because it did not contain a full disclosure of the factual basis upon

which the groundsfor relief were based, instead relying on bare allegations of a violation of his Sixth

Amendment right to effective assistance of counsel with no more than mere conclusions of law to

support such allegations. The post-conviction court further found that the Petitioner failed to verify

his amended petition under oath. Concluding that the Petitioner failed to meet the statutorily

required elements for a proper post-conviction petition, the post-conviction court held that the

amended petition did not warrant further proceedings. We conclude that the trial court acted within

its discretionary authority in dismissing the Petitioner’s petition for post-conviction relief.

CONCLUSION

Based on the foregoing reasoning and authorities, we affirm the judgment of the trial court.

___________________________________ 

DAVID H. WELLES, JUDGE