IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs at Knoxville December 15, 2009

PHEDREK T. DAVIS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2003-D-2992 Seth Norman, Judge

No. M2009-01616-CCA-R3-PC - Filed May 14, 2010

The Petitioner, Phedreck T. Davis, appeals the Davidson County Criminal Court’s denial of

his petition for post-conviction relief challenging his convictions for first degree murder,

attempted second degree murder, and assault, for which he received an effective sentence of

life imprisonment plus fifteen years. See State v. Phedrek T. Davis, No. M2006-00198-

CCA-R3-CD, Davidson County, slip op. (Tenn. Crim. App. July 19, 2007), aff’d, 266

S.W.3d 896 (Tenn. 2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2790 (2009). He claims that

newly discovered evidence proves that the State solicited damaging perjury during his initial

trial, thereby violating his constitutional rights. The trial court dismissed his claim as having

been previously determined. See T.C.A. § 40-30-106(f). We affirm the judgment of the

post-conviction court.

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

JOSEPH M.TIPTON, P.J., delivered the opinion of the Court, in which JAMESCURWOODWITT,

JR., and NORMA MCGEE OGLE, JJ., joined.

Phedrek T. Davis, Only, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

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

Attorney General, for the appellee, State of Tennessee.

OPINION

The Petitioner centers his claim that the State solicited perjured testimony around the

testimony of Eula Beasley. At the trial, Mr. Beasley testified to seeing the Petitioner threaten

and strike the victim shortly before the victim’s murder. However, Mr. Beasley did not
testify that the Petitioner threatened to kill the victim until the State refreshed Mr. Beasley’s

recollection with his statement to the police. When asked about the statement, Mr. Beasley

testified that he had initialed the statement after confirming its accuracy. Notably, the police

officer who recorded the statement, Detective E.J. Bernard, faced public allegations of

forging police reports at the time of the trial. Phedrek T. Davis, No. M2006-00198-CCA-R3-

CD, slip op. at 15-17.

The Petitioner alleged in his petition that Mr. Beasley committed perjury by testifying

that he initialed his statement to the police. The Petitioner claims that Detective Bernard,

instead, was the true author of the “EB” (Eula Beasley) on the police report. To support his

claim, the Petitioner attached a recent report from a handwriting expert. The report states

that Detective Bernard more likely than not authored Eula Beasley’s initials on the police

report.

The Petitioner argues that the handwriting expert’s report justifies collateral relief

under the Post-Conviction Procedure Act. According to the Petitioner, the report supports

his claim that the State solicited perjury from a key witness, thereby violating his

constitutional rights. The trial court summarily denied the petition on the grounds that the

issue of Mr. Beasley’s possible perjury regarding the police report had been previously

determined. The Petitioner now appeals the trial court’s decision. He requests the

appointment of counsel and an evidentiary hearing regarding Mr. Beasley’s alleged perjury.

In the alternative, the Petitioner claims that the trial court erred by not affording him an

opportunity to amend his petition with the assistance of counsel.

The Post-Conviction Procedure Act grantsthe trial court authority to dismiss a petition

for post-conviction relief if the grounds for relief were “previously determined” in prior

judicial proceedings. T.C.A. § 40-30-106(f) (2009). The Petitioner contends that because

the expert handwriting evidence had never been introduced at the trial to impeach Mr.

Beasley, the trial court could not have found the issue of Mr. Beasley’s perjury to be

previously determined.

The Petitioner misconstrues when a claim is previously determined. New factual

allegations alone cannot overcome the previous determination of a claim. See Cone v. State,

927 S.W.2d 579, 582 (Tenn. Crim. App. 1995); Mohamed F. Ali v. State, No. E2001-00183-

CCA-R3-PC, Washington County, slip. op. (Tenn. Crim. App. Apr. 11, 2003). To allow for

a wider conception of a previously determined claim would violate a fundamental rule of

post-conviction proceedings: relitigating decided legal questions. Ray v. State, 489 S.W.2d

849, 851 (Tenn. Crim. App. 1971).

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In contrast to the Petitioner’s idea of when a claim is previously determined, the Act

contemplates a broader view. Under the Act, a ground for relief is previously determined “if

a court of competent jurisdiction has ruled on the merits after a full and fair hearing.” T.C.A.

§ 40-30-106(h) (2006). The Act defines a “full and fair hearing” as having occurred “where

the petitioner is afforded the opportunity to call witnesses and otherwise present evidence,

regardless of whether the petitioner actually introduced any evidence.” Id. The supreme

court has further defined a “full and fair hearing” as a meaningful opportunity for the

defendant to present evidence and argument about his constitutional claims before a judge.

House v. State, 911 S.W.2d 705, 711 (1995). However, due process concerns may overcome

the rule of previous determination if improper state conduct caused the petitioner’s failure

to discover new information. See Sample v. State, 82 S.W.3d 267, 273, 275 (Tenn. 2002);

Wright v. State, 987 S.W.2d 26, 30 (Tenn. 1999). Upon review, we conclude that the

Petitioner’s claim that the State violated the Petitioner’s constitutional rights by soliciting

perjury has been previously determined and that he has not alleged facts which if proven

would establish a due process bar to the previous determination rule.

During his trial and appeal, the Petitioner had meaningful opportunities to introduce

evidence of Detective Bernard’s forgery of Mr. Beasley’s initials, and he took advantage of

these opportunities on several other occasions. At the trial, the Petitioner sought to introduce

evidence of the allegations that Detective Bernard forged police reports. The trial court

excluded the evidence because it was irrelevant. On appeal, the Petitioner challenged the

trial court’s refusal to admit the evidence, but this court affirmed the trial court’s decision.

Phedrek T. Davis, slip op. at 16-17. As the record shows, the Petitioner’s lack of success in

impeaching Mr. Beasley was due to a lawful exercise of courtroom discretion. This does not

give the Petitioner grounds for post-conviction relief.

Although the Petitioner had previous opportunities to impeach Mr. Beasley, the

Petitioner contends that the newly obtained handwriting evidence proves that these

opportunities were not sufficiently meaningful. See House, 911 S.W.2d at 711. He accuses

the State of denying him the opportunity of admitting the handwriting evidence. In this case,

however, the Petitioner’s failure to present expert handwriting testimony was not due to State

conduct.

The Petitioner asserts that the State did not give him adequate time to review Mr.

Beasley’s police statement for signs of forgery, thereby making it impossible for him to

determine the need for a handwriting expert. The State, however, acted properly when it

provided the statement after Mr. Beasley’s testimony. See Tenn. R. Crim. P. 26.2(a). The

Petitioner also had notice of the allegations against Detective Bernard before trial and was

prepared to offer evidence that Detective Bernard had forged the police statement. Despite

this knowledge, he failed to ask the trial court for additional time to review the police report

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in order to assess the need for a handwriting expert. Under these circumstances, the

Petitioner’s failure to obtain a handwriting expert was not a result of improper State conduct.

The Petitioner was free to offer handwriting evidence during the trial, but he failed to do so.

The trial court properly denied relief.

The indigent Petitioner also argues that the trial court erred in not allowing him to

amend his petition with the assistance of counsel. “Pro se petitions are to be held to less

stringent standards than formal pleadings drafted by lawyers.” Allen v. State, 854 S.W.2d

873, 875 (Tenn. 2003); see Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988). Both the

Tennessee Supreme Court Rules and the Post-Conviction Procedure Act provide greater

leeway to pro se petitions by indigent petitioners. The Rules require and the Act permits the

trial court to appoint counsel to an indigent defendant to assist in amending his petition.

T.C.A. § 40-30-106(f); Tenn. Sup. Ct. R. 28, § 6(B)(3)(a). However, the trial court must

only appoint counsel if the Petitioner presents a colorable claim in his or her petition. Tenn.

Sup. Ct. R. 28, § 6(B)(4)(a).

A colorable claim is a claim that “if taken as true, in the light most favorable to

Petitioner, would entitle Petitioner to relief under the Post-Conviction Procedure Act.” Tenn.

Sup. Ct. Rule 28, § 2(H). Courts have often granted leeway to colorable claims advanced by

indigent petitioners. See, e.g., Arnold v. State, 143 S.W.3d 784 (Tenn. 2004) (petitioner

presented a colorable claim even though he failed offer detailed facts supporting his

ineffective assistance of counsel claim); Homer T. Rivers v. State, No.

W2006-01607-CCA-R3-PC, Hardeman County, slip op. (Tenn. Crim. App. June 1, 2007)

(petitioner presented a colorable claim even though the underlying facts of the petition were

ambiguous); Donna G. Sexton v. State, No. E1999-02226-CCA-R3-PC, Carter County, slip

op. (Tenn. Crim. App. July 31, 2000) (petitioner presented a colorable claim even though she

failed to state the specific mental condition that made it impossible for her to understand her

plea bargain). However, if the claim, taken as true, does not constitute a colorable claim, the

appointment of counsel is not necessary. Pewitt v. State, 1 S.W.3d 674, 674 (Tenn. Crim.

App. 1999) (holding that a petition alleging no particulars of ineffective assistance of counsel

did not state a colorable claim); Earl Crawford, Jr. v. State, No. 03C01-9610-CR-00385,

Bradley County, slip op. (Tenn. Crim. App. July 29, 1997) (dismissal of the petition was

proper because the facts alleged did not suggest an abridgment of any constitutional right).

The Petitioner failed to make a colorable claim that the State violated his

constitutional rights by soliciting perjury. Unlike the petitioners in the many cases requiring

the appointment of counsel, this Petitioner presented a detailed analysis in support of his

claim that the State solicited perjury. In his lengthy petition, the Petitioner included excerpts

from the trial, newspaper articles concerning Detective Bernard, and samples of Detective

Bernard’s handwriting. No matter how the Court viewsthese facts, the Petitioner has already

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had a full and fair hearing on Mr. Beasley’s alleged perjury. The issue advanced in the

petition that the State solicited perjury was previously determined. It is therefore the merits

of the petition, not the form, that permit its summary dismissal. See Blair v. State, 969

S.W.2d 423, 425 (Tenn. Crim. App. 1997). The trial court was not obligated to appoint

counsel to amend the petition on the Petitioner’s asserted grounds for relief.

In consideration of the foregoing and the record as a whole, we affirm the judgment

of the trial court.

___________________________________

JOSEPH M. TIPTON, PRESIDING JUDGE

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