# FILED
April 20, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON DECEMBER 1998 SESSION

STATE OF TENN ESSEE, ) ) C.C.A. No. 02C01-9805- CC-00131 Appellee, ) ) Madison County V. ) ) Honorable Whit Lafon, Judge ) ROBERT LEE MOORE, ) (Petition for Post-Convict ion Rel ief) ) Appellant. ) )

FOR THE APPE LLANT: FOR THE APPELLEE:
JOSEPH L. PATTERSON JOHN KNOX WALKUP 225 West Baltimore Suite B Attorney General & Repor ter Jackson, TN 38301 ELIZABETH T. RYAN Assistant Attorney General Criminal Justice Div

ision 425 Fifth Avenue North Nashville, TN 37243 JAMES G. “JERRY” WOODALL District Attorney General AL EARLS Assistant District A

ttorney P.O. Box 2825 Jackson, TN 38302-2825

OPINION FILED: ___________________
AFFIRMED
JOHN EVERETT WILLIA MS, Judge1 The record shows that the peti tioner has faced earli er and apparentl y unrel ated schedule II substance possession charges. However, we discuss only this most recent convicti on. -2- 

### OPINION The petitioner, Robert Lee Moor e, appeals under Tennessee Code Annotated § 40-30-216 and contests the po st-conviction court’s dismissing his petition for relief. The petitione r alleges that ineffectiv e assistance of his trial counsel merits a new tr ial. He further alleges

that the Order DenyingPostConviction Relief w

as improperly entered and lacks proof adduced at the postconvictio n relief evidentia ry hearing. We AFF IRM the Ord er below.

BACKGROUND In May 1994, the Circui t Court of Madison County, Tennessee, sentenced the petitioner, Robert Lee M oore, as a career crimina l after convicting hi m of possession of a schedule II controlled substance with intent to sell or deliver. 1 The petitioner was repres ented by counsel at trial

.

After this Court affirmed the conviction and sente ncing on direct appeal, the petitioner filed a pro se pe tition for post-convict ion relief regarding the May 1994 conviction and other convictions pertinent to the sentence. T he petitioner, seeking either a new trial or a new sentencing hearing, alleg ed that he entered guilty pleas t o those p rior ch arges w ithout being ad

vised o f his ri ghts ag ainst s elfincrimination and to confront and cross-examine witnesses. He further allege d that he was not advised of “any of his rights” in the schedule II substance possession case. Finall y, he argued that the tri al judge erred by not charging the jury with lesser offenses at the conclusion of his trial for possession of schedule II substance.
The post-conviction court appointed counsel for the petition er, and the petitioner amended his petition. The petitioner further addresse d the prior2 The post -con viction Ord er als o add ress ed ot her c laim s not pres ente d in this appe al. -3- convictions and both the j ury instructions and the sentencing for his schedul e II possession charge. Fur ther, the state’s response t o his proposed amendments included an allegation that “‘any issue regar ding failure to raise er

rors at sentencing were [si c] waived by faili ng to raise these issues on appeal.’” In the petition er’s first amende d petitio n, he alle ged that t his respo nse “plai nly” indicated ineffective assistance of counsel du ring both the trial and the direct appeal of that trial. He then specifically asserted tha t counsel’s not objecting to the jury instructions at his schedule II substance possession trial and improperly presenting pertinent time fr ames of prior convictions germane to his career criminal sentence constituted ineffective assistance of couns el.
Finally, the petitioner

filed a second amendment to his petiti on alleging that the schedule II substance pos session charge indictment omitted the requisite mental state.
At the post-conviction r elief evidentiary hear

ing, the petitioner entere d exhibits of the minutes from a hearing regarding a prior aggravated assault charge and of indictments reg arding both his prior convictions and his sc hedule II substance possession charge. The petitioner testified that his trial counsel did not call an important witness, who had since died. The petitioner also testified that his counsel ineffectivel y prepared for the defense and did not communicate with the petitioner. The C ircuit Court of Madison C ounty, Division I, dismissed the petition. That court held tha t the petitioner waiv

ed his argument regardi ng failure to call the witness by omitting that i ssue from his pleadings. The tr ial court also held that this Court’s affirmation, on direct app eal, of the petitioner’s
career crimin al sente ncing barred t hat iss ue as gr ounds for

post-c onvict ion rel ief. The post-conviction court additionally held that t he petitioner offered neither proof nor any factual allegations of his remaining claims of ine ffective assistance of counsel. 2-4- On this appeal, the petitioner alleges that he did not appr ove the subsequent post-convic tion court Order and that thi s Order lacks a certificate of service to him. He further alleges that the Order omits proof he adduced at his hearing. He requests

a new trial.



### STANDA RD OF REVIEW At an evidentiary hear

ing pursuant to a post-conv iction relief petition, the petitioner must provide c lear and convincing e

vidence that a “convi ction or sentence is void or v

oidable because of the abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of the United S tates.” Tenn. Code Ann. §§ 40-30-203, 210(f). Tennesse e Code Annotated § 40-30-210(c) limits a petitioner at a pos t-conviction relie

f evidentiary hearing

“to evidence of the allegations of fact in the peti tion.” A trial court

’s findings of fact and conclus ions of l aw from the peti tioner’ s evide ntiary hearing carry the wei ght of a jury verdict. See Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). This Court does not rewei gh or reevaluate ev idence and does not substitute its own inferences for those determi ned by the trial court. See id . The petitioner must show that “the evi dence contained in the record pr eponderates against the judgment entered in the cause.” Id.



### ANA LYSIS We f irst addre ss the pet itioner’ s asserte d “prima f acie case ” of inef fective assistance of counsel. The petitioner claims that trial coun sel did not call a particular witness , a witness who all egedly died after the tri al. However, the petitioner’s pleadings omit any relevant factual allegations. The trial court’s Order Dismissing Pet ition correctly st ates that the petitioner w aived this claim by omission. Tenn. Code Ann. § 40-30-2 10(c) (“[p]roof upon the petit ioner’s claim or claims for relief shall be l imited to evidence of the allegations of fact in the petition”); see Thomas Edward Murphy, Jr. v. State , No. 02C01-9710-CC-00378-5- (Tenn. Crim. App. filed Nov . 9, 1998, at Jackson). This al legation is without merit.
The petitioner also alleges that his counsel improperl y presented the dates of prior convictio ns pertinent to the subsequent career criminal sentence. This Court approved the sentence on direct appeal. “It is . . . well-settled law in the area of post-conviction practice that issues w hich were previous ly determined in earlier proceedings are not subject to relitigation.” Robert Senick v. State , No. 01 C0 1- 97 11 -C R- 00 55 0 ( Te nn . C ri m. Ap p. fi le d D ec . 3 , 1 99 8, at Na sh vi ll e) . We concur with the post-conviction court’s determination that the ruling on the direct appeal p reclude

s this i ssue as a basis for post -convi ction r

elief.
The pet itioner’ s remaini ng points pertinen t to his pri ma facie case invol ve the trial counsel’s prep aration for the defense and communication w ith the petitioner. The petitioner as serts that his testimony at the post-conviction hearing “clearly

created a factual issue as to t he number of meetings and the entire course of preparation for the trial and sentencing.” The Code requires more than a “factual issue.” The s tatutes require “clear

and convincing evidence.” Tenn. Code Ann. § 40-30-210(f).
None of the three petitions compri sed the requisite “factual allegations” of deficient communication with the petitioner and general lack of preparation.” A post-conviction court

reviews a submitted

petition without reg ard for the “factual merits of the allegations” and determines whether, assuming the allegation s are true, a “colorable claim is stated.” John Paul Seals v. State , No. 03C01-9802- CC-00050 (Tenn. Crim. App. fil ed Jan. 6, 1999, at Knoxvil le). However, “[t]he petitioner shall include allegations of fact supporting each claim for relief set forth in the petition.” Tenn. Code Ann. § 40-30-204(e). Further , [t]he petition must contain a clear and specific statem ent of all grounds upon which rel ief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right ha

s been violated and mere concl usions of law shall not be sufficient to war rant any further proceedings. Failure to-6- state a factual basis for the gr ounds alleged shall result in immediate dismissal of the petiti on . Tenn. Code Ann. § 40-30-206(d) (emphasis adde d).
The petitioner’s pleadings did not constitute “alleg ations of fact” regarding either generally defic

ient preparation or communicati on. Appointed counsel twice amended the pro se petition. The first amended petition noted that the state’s response to the propos ed amendments in part asserted that “‘any issue regarding failure to raise errors at sentencing were [sic] waived by failing to raise these iss ues on ap peal.’” T he petit ioner all eges that this respo nse “plai nly” indicates ineffective assis tance of counsel at trial. We agree with the postconviction court: the pet itioner waived thes e grounds for relief by omi ssion.

In Johnny Wayne Harris v. State , No. 03C01-9803-CR-00086 ( Tenn. Crim. App. filed Jan. 6, 1999, at Knoxville), this Court approved the dismi ssal of a petitioner’s claim becaus e the petition did not satisfy statutory requirement

s. Allegations that his tr

ial counsel was ineffectiv e, for reasons including l ess than zealous representation and not conducting witness investigations, di d not constitute a “colorable claim,” because the petition omitted , among other factors, the identity of the witnes ses and to what the witnesses would have tes tified. The petition fell short of the req uired “full disclosure of the factual basis of the grounds asserted.” Id. ; see also Thomas Edward Murphy, Jr. v. State , No. 02C01-9710-CC-00378 (Tenn. Cr im. App. Filed Nov. 9, 19 98, at Jackson). But cf. Coyce E. Wells v. State , No. 01C01-9602-CC-00054 (Tenn. Crim. App. filed Jan. 16, 1997, at Nashvill e) (The petitioner’s asser tion that “he experienced ineffective assistance of counsel at original sentencing fo r lack of appeal” constituted a sufficient “factual bas is.”).
In the instant case the petitioner relied on a conclusory sentence in his first am ended pe tition. T he petit ioner ass erted th at the sta te’s resp onse “cle arly”-7- established ineffective assi stance of counsel both on appeal and at t he trial. Apparently, the petitioner concluded that his noting the state’s argume nt, which addressed the petitioner’s waiving issues by not including them on his direct appeal, in conjunction wi th the petitioner’s testimony at the hearing established a “factual allegation.” We agree w ith the post-convicti on court decision that the petitioner did not “state any factual basis” for these parti cular alleged bases of relief.
Further, even if the petitioner established the requisite factual allegatio ns, his proof at the hearing fell substantially below the required standard His offered proof consisted solely of hi s own testimony and sev eral exhibits. The petitioner offered no explanation regarding the relev ance of prior indictments and hearing minutes to the claimed deficient preparation and communication. He offered no relevant proof beyond hi s own testimony. “ The presumption is that the attorney rendered effectiv e assistance, and the burden is on the petitioner to prove that the assistance was ineffective.” Thomas Edward Murphy v . State , No. 02C01-9710-CC-00378 (Tenn. Cr im. App. filed Nov. 9, 1998, fil ed at Jackson). “In a post-conviction proceeding, a petitioner’s uncorroborated testimony is insufficient to carry this burden of proof.” Id. We do not find the prep onderance of evidence necessary to overturn the post-conviction court’s finding on this issue. Also, the petitions contested the trial court’ s jury instruction s, but the petitioner offered no proof of this issue at the hearing. Therefore, these points of the petitioner’s appeal are also without merit.
The petitioner’s remaining argument address es the trial court’s Or

der Denying Post-Conviction Relief. He asserts that this Order was improperly entered because the petitioner di d not approve the Order and bec ause the Order lacked a certificate of serv ice for the petitioner’s cou nsel. The petitioner apparently contends that the fil ing prejudices his appeal by depriving hi m of-8- opportunity to ensure that t he Order incorporated cer tain “proof adduced in the hearing.”
Tennessee Code Annotated § 40-30-211(b)requires that the postconviction court file a final order comprising t he “findings of fact and conclusion s of law with regard to each . . . ground presented.” The Order adequately explains the factual and leg al bases for the post-convi ction court’s denying relief regarding the career criminal sentencing and the jury instructions. This Court reviewed the hearing transcript and concurs with the post-conviction court’s finding that

the petitio ner presente d insufficient proof to car ry his cl aims regarding failure to c

all a witness, inadeq uate prepare for the defense, and deficient communication with the petitioner, See Daniel B. Taylor v. State , No. 02C01-9703-CR-00091 (Tenn. Cr im. App. filed March 18, 1998, at Jackson) (Reversal of the post-c onviction court’s j udgment is not necessary , despite noncompliance with the statute, if “the record transmitted to this [C]ourt is sufficient to effectuate a m eaningful appellate review on each ground raised in the petition.”). This is

sue is without merit.



### CONCLUSION The post-conviction court ’s dismissal of the petition is AFFIRMED and the petitioner’s appeal as to the filing of that court’s order is DISMISSED.

_____________________________ JOHN EVERETT W ILLIAMS, Judge-9- CONCUR:

____________________________ GARY R. WADE , Presiding Judge

(NOT PARTICIPATING) THOMAS T. W OODALL, Judge