IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

January 24, 2006 Session

CLIFFORD LEON FARRA v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Sullivan County

No. C49, 329 R. Jerry Beck, Judge

No. E2005-00963-CCA-R3-PC - Filed April 3, 2006

The petitioner, Clifford Leon Farra, appeals from the denial of his petition for post-conviction relief.

In this appeal, he asserts that the post-conviction court erred by proceeding with an evidentiary

hearing even though the state had failed to file an answer to his original pro se petition. The

judgment of the post-conviction court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed

GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JAMES

CURWOOD WITT, JR., JJ., joined.

Whitney P. Taylor, Kingsport, Tennessee, for the appellant, Clifford Leon Farra.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;

H. Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

In August 2001, the petitioner was convicted of possession of more than 300 grams of

cocaine with intent to resell, sale of more than 300 grams of cocaine, conspiracy to sell more than

300 grams of cocaine, possession of more than ten pounds of marijuana with intent to resell, sale of

more than ten pounds of marijuana, and conspiracy to sell more than ten pounds of marijuana. The

trial court merged the conviction for possession of more than 300 grams of cocaine into the

conviction for sale of more than 300 grams of cocaine and also merged the conviction for possession

of more than ten pounds of marijuana into the conviction for sale of more than ten pounds of

marijuana. An effective sentence of forty-four years was imposed. On direct appeal, this court

vacated the conviction for conspiracy to sell more than ten pounds of marijuana but otherwise

affirmed the judgments of the trial court. See State v. Clifford Leon Farra, No. E2001-02235-CCAR3-CD (Tenn. Crim. App., at Knoxville, Dec. 10, 2003). The effective sentence remained the same.

Id. Our supreme court denied permission to appeal on May 10, 2004.
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Less than two months later, the petitioner filed a petition for post-conviction relief alleging

fifteen separate grounds for relief. After the appointment of counsel, the petition was amended to

include five additional grounds for relief. The state filed an answer within thirty days but addressed

only the five grounds presented in the amended petition. The post-conviction court conducted an

evidentiary hearing and ultimately denied relief by written order.

In this appeal, the single issue presented for our review is whether the trial court erred by

conducting an evidentiary hearing without requiring the state to file a written answer to the

allegations contained in the original petition for post-conviction relief. The petitioner contends that

he was not given an opportunity to be heard on all of the issues. The state submits that the petitioner

had a full and fair hearing on each of the claims and that any error by the post-conviction court was

not prejudicial.

On March 17, 2005, approximately six weeks after the filing of the state's answer to the

amended petition, the post-conviction court conducted an evidentiary hearing. Through his counsel,

the petitioner asserted that he was confused by the state's failure to answer the allegations in the

original petition and asked that the state be required to provide a complete response prior to the

hearing. The post-conviction court assured the petitioner that all constitutional claims raised in both

his original and amended petitions would be considered despite the state's failure to file a specific

answer to the former. The court suggested that each of the claims be addressed one-by-one in order

to determine which were constitutional and which were not. The court also indicated that it would

determine prior to the presentation of evidence whether the state would be required to respond.

During the discussion of the issues raised in the original petition, the petitioner, through counsel,

abandoned several of the grounds for relief and acknowledged that others had been waived or

previously determined. See Tenn. Code Ann. § 40-30-106(g), (h) (2003). Counsel for the petitioner

then announced, "[I]f there is a proper ground raised in his original [p]etition, [the petitioner] would

like it answered, according to the [s]tatute, before his hearing, so he knows what he is getting into."

After observing that "discovery" was not the purpose of the statutory requirement for a

responsive pleading, the post-conviction court provided the state the opportunity to respond orally

to each claim. When the petitioner insisted that the state file an answer prior to the hearing, the postconviction court ruled that the answer to the amended petition operated as a general denial, which

was sufficient to satisfy the requirements of the statute. The petitioner, through counsel, then

asserted that he was not prepared to go forward because he had assumed that the hearing would not

be held in the absence of an answer from the state. He contended that several potential witnesses

were not present. While the petitioner's counsel initially asked for "more time," he conceded that

his motive for asking was so the state could file a complete answer. When, however, the postconviction court provided assurances that it would address all constitutional claims raised by the

petitioner, counsel ultimately agreed to go forward.

During the evidentiary hearing, the petitioner testified that his right to a fair trial was violated

by the state's failure to observe the rule of witness sequestration. See Tenn. R. Evid. 615; see also

State v. Anthony, 836 S.W.2d 600, 604-05 (Tenn. Crim. App. 1992) (explaining the history and
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importance of the rule). The petitioner stated that an officer, Bryan Bishop, talked with several state

witnesses both before and after their testimony. While acknowledging that he had not heard the

conversations, the petitioner asserted that the testimony of those witnesses would have been different

had they "walked in cold, and been asked questions." The petitioner admitted that his trial counsel

did not ask for "the Rule" until after the defense rested its case-in-chief.

The petitioner also claimed that the grand jury was unconstitutionally selected and empaneled

in that African Americans were systematically excluded. He testified that the inmate who assisted

in the preparation of his original petition "could prove" that there had not been an African American

grand jury foreman in more than eighteen years. While asserting that he had "indictment sheets"

signed by Art Salyer as grand jury foreman from as early as 1988, the petitioner admitted that he did

not know if Salyer was African American, did not know how the grand jurors were selected, and

otherwise had no proof of systematic exclusion by race. In a related issue, he asserted that his trial

counsel was ineffective for failing to challenge the composition of the grand jury. He acknowledged,

however, that he had no evidence that it was, in fact, unconstitutionally composed.

The petitioner also contended that his trial counsel was ineffective for failing to successfully

challenge the validity of the search warrant issued for a rental unit, claiming that trial counsel should

have established that he had rented more than one unit. Although he could not recall if he had

informed his trial counsel that there was more than one unit, the petitioner claimed that his counsel

should have known anyway. He also asserted that his counsel was ineffective for failing to call as

a witness his accountant, Paul Rhoten, to establish that he did not earn a living by selling drugs.

When called as a witness by the petitioner, trial counsel testified that he could not recall

whether the petitioner had informed him that he had rented more than one storage unit. Trial counsel

defended his decision not to call Rhoten as a witness, explaining that Rhoten had indicated during

a pretrial meeting that his testimony would "hurt [the petitioner] more than . . . help him." It was

trial counsel's opinion that he had never represented a client when the evidence of guilt was more

overwhelming. Officer Bryan Bishop, who testified as a witness for the state, denied having spoken

to any state witness regarding the testimony presented during the petitioner's trial.

At the conclusion of the hearing, the post-conviction court denied relief, finding that the

petitioner had failed to prove his claims by clear and convincing evidence. With regard to the

petitioner's claim about witness sequestration, the post-conviction court concluded that the rule had

not been demanded and, "even if it had been," there was no indication that there had been a breach.

The post-conviction court also determined that the petitioner had failed to present "even a scintilla

of proof" to support his claim that African Americans had been systematically excluded from the

grand jury. Finally, the post-conviction court accredited the testimony of trial counsel and concluded

that trial counsel was not ineffective for failing to challenge the basis for the issuance of the search

warrant or for failing to call the petitioner's accountant as a witness.

As indicated, the single issue presented for our review is whether the post-conviction court

erred by conducting an evidentiary hearing even though the state failed to file a written answer to
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the claims raised in his original post-conviction petition. While Tennessee Code Annotated section

40-30-108 requires the state to file an answer or other responsive pleading, nothing in the PostConviction Procedure Act provides either a remedy or a sanction for the state's failure to respond.

Section 108 specifically provides that the "[f]ailure by the state to timely respond does not entitle

the petitioner to relief under the Post-Conviction Procedure Act." Tenn. Code Ann. § 40-30-108(a)

(2003).

Further, the petitioner has failed to establish that he was prejudiced by the state's failure to

respond. See Brewington v. State, No. 01C01-9808-CR-00327 (Tenn. Crim. App., at Nashville,

Dec. 10, 1999), perm. app. denied, (Tenn. 2000). The state filed an answer to each of the claims

raised in the amended petition. The post-conviction court concluded that the filing operated as a

general denial to all of the petitioner's claims for relief. At the evidentiary hearing, the state provided

an oral response to each of the petitioner's claims prior to the commencement of testimony. The

post-conviction court considered all of the claims presented in both the original and amended

petitions and permitted the petitioner to present evidence on those claims that were not abandoned,

previously determined, or waived. Finally, the state did not offer any unexpected evidence at the

hearing.

Under these circumstances, it is our view that the petitioner was afforded a full and fair

hearing despite the state's failure to file a written response to the claims raised in the original

petition. In consequence, he is not entitled to relief on this issue.

Accordingly, the judgment of the post-conviction court is affirmed.

___________________________________ 

GARY R. WADE, PRESIDING JUDGE