### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE May 16, 2001 Ses sion
RAYMOND O. JACKSON v. STA TE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County

No. C-3599 Steve R. Dozier, Judge

No. M1999-02106-CCA-R3-PC - Filed July 26, 2001

The petitioner appeals the tr ial court’s dismissal of his petition for post-conviction relief. Spe cif ica lly, he contends that the trial court denied him an opportunity to have a full and fair hearing on the merits of his c

laim. After revie

w, we agree w

ith the trial court

and affirm the dis

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

J OHN E VERETT W ILLI AMS , J., delivered the opinion o f the court, in which J ERRY L. S MITH and N ORMA M C G EE O GLE , JJ., joined. Jefre S. Goldtrap, Nashville, Tennessee, for the appellant, Raymond O. Jackson.

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

neral; Victor S. ( Tor ry) Johnson III

, District Attorne

y General ; and Kymber

ly L. A. Haas, Assistant District Attorney General, for the appellee, State of Tennesse e.

OPINION

The petitioner, Raymond O. Jackson, appeals the Davidson County Criminal Court’s dismissal of his petition for p ost-conviction r elief. He asser ts that he was denie

d a “full and fair hearing” on this his third petition for post-conviction relief.

Facts

On March 6, 1980, the petitioner was convicted of assault with

intent to murder, kidnapping for rob bery, and arm ed ro bbe ry. The trial court imposed a sentence of five to twenty-one y ears for assault, fifteen years for robbery , and fifty years for

kidnapping. The sentences were ordered to run
con secu tiv ely. See Raymond O. Jackson v. State , No. 01C01-96908-CR-00368, 1998 WL 30255, at *1 (Tenn. Crim. App., filed January 28, 1998, at Nashville).-2-

The petitioner filed his first post-conviction on October 26, 1982, alleging that trial counsel
was ineffective for failing to investigate the case properly or adequately confer with him, and for failing to present an alibi defense. The trial court dismissed the petition on October 26, 1982. This court affirmed the dismissal. Raymond O. Jackson v. State , Davidson County, No. 82-217-III (Tenn. Crim. App., filed November 2 5, 1983, at Nashville). The Tennessee Supreme Court denied permission to appeal on March 12, 1984.

The petitioner fileda second post-conviction petition alleging that trial counsel failed to have him evaluated for mental competency and failed to adv ance an insa

nity defense. The trial court deniedthe petition, and th is court affirme

d the denial, holdin

g that the is s ue had been waived because it should have b een included i n the first petition for post-conviction relief. Raymond O. Jackson v. State , No. 85-329-III (Te nn. Crim. App., filed December 18, 1986, at Nashville). The Tennessee Supreme Court denied permission to appeal on March 9, 1987.

On June 30, 1989, the petitioner filed a t hir d post-conviction petition. The trial court dismissed the petition on February 13, 1990, “but later withdrew the order of dismissal to allow the Petitioner to present further evidence. On March 12, 1996, the trial court entered an order denying the petition,” and the petitioner filed a notice of appeal on April 11, 1996. Raymond O. Jackson v. State , No. 01C 01- 969 08- CR- 003 68, 199 8 WL 3 025 5, a t *1 (Ten n. C rim . Ap p., fil ed J anu ary 2 8 , 1998, at Nashville). The record on appeal did not contain a copy the p etition or transcript of any hearing on the matter. From the trial court’s order denying the petition, this court determined that the petition, like the secondone, challenged the effectiveness of trial counsel for failure to pursue a competency

evaluation and a

n insanity defense. It appeared that the petition also challenged the effectiveness

of the petitioner’ s prior post-convi ction counsel for

failing to raise

the first iss ue in previous post-conviction petitions. Id . at *3-5.

A panel of this court held that the documents necessary to complete the record on a ppe a l “wereapparently lost or misplaced through no fault of the petitioner. The trial court clerk attempted to locat e the entire cas

e file, but to no avail.” Id . at *6. The case was remanded back to the trial court for further pro

ceedings. This court ordered that the case first proceed “with an attempt by the parties to reconstruct the record.” This court stated: [T]he burden isfirst on the Petitioner to attempt to reconstruct a sufficient record of the proceeding

s below. This attemp

t will obviously take

place in conjunc

tion with inputand a response from the District

Attorney General’s office. Upon completing the reconstruction of

a sufficient record, the Petitioner and the State shall present the record and their arguments on the issues raised to the trial court. We recognize that the passage of time

has rendered th

is task difficult, if not impossible. If the Petitioner and the State cannot reconstruct a sufficient record to allow meaningful review of the issues presented, wesee no alternative but to allow the Petitioner to file an amended petition for

post- convi ction relie f. In that event, we direct the trial court to allow the Petitioner to file the amended petit

ion for post-convi

ction relief rel

ating back to his original,pro se petition, appare ntl y f iled on June 30, 1989. Proceedings on the amended petition must then begin anew.-3-

Id . at *6 (emphasis added).

On July 26, 1999, the trial court for Divi sion II I of the Davidson County Criminal Court recused itself because the petitioner had failed to execute a written waiver regarding the court’s prior employment

with the District Attorney General’s office. The court noted that the ca se had been docketed on 19 different dates and that the petitioner had not reconstructed the record or filed an amended petition. On November 3, 1999, the trial court in Division I entered an order dismissing the post-conviction petition a second time because

the petitioner failed to comply with this Court’s order to reconstruct the record or file an amended petition.

In dismissing the petition, the court noted that it hadset three prior hearings on the petition. At the last setting on October 1, 1999, counsel for the petitioner stated that any amended petition or other necessary documents would be filed with the court by October 5, 1999. This date was set by the court because th

e State needed time to

prepare for the hearing, which was then set for November 5, 1999. The court further no ted that counsel for the petitioner had sent the court a letter dated Oc tober25, 1999, requesting additional time to file the amended petition. The court allowed the
e xtension; however, no documents were ever filed. The court stated that Division I an d III of th e Criminal Courts of Davidson C ounty had be

en trying t

o reso lve this matter for approximately 19 months and that the case had been set for hearing 23 times. The court included transcripts of three of the hearings as exhibits. The court stated, “At each of those hearings, counsel for the petitioner stated that the Post Conviction petition would be voluntarily dismissed or an amended petition filed. This court has extended every opportunity to the petitioner and counsel on the record in open court on numerous occasions to comply with Orders of this Court and the Appellate Court.”

The petitioner filed a pro se Notice of Appeal on November 19, 1999. On August 7, 2000, he filed a motion to supplement the record stating that he had recently found copies of thelost postconviction petition. However, this court entered an order on October 6, 2000

, denying t

he request, stating that the items were never presented to or authorized by the trial court and the petitioner, through previous counsel, “had theopportunity to present these items to the trial court upon remand but failed to do so.” Analysis

The petitioner

contends that the trial court erred in dismissing his petition for post-conviction relief and, therefore, denied him a full and fair hearing on the merits of his claim. The crux of our analysis begins with this court’s previous rever sal and rema nd of the prior dismissal of the petitioner’s third post-c onviction petition. As previously pointed out, this court reversed the dismissal and remanded the case for the par

tied to attempt to re

construct th

e record for ade

quate post-convictio

n relie f review. This co

urt further held

that in the event th

e parties were u

nable to reconstruct

the record, the trialcourt shall “allow the petitioner to f ile [an] amended pe

tition for postconviction relief relating back to his original, pro se petition, apparently f iled on Jun e, 3 0, 1989.-4-

Proceedings on the amended petition must then begin anew.” Ra ymond O. Jacks on , 1998 WL 30255, at *1.

The record reflects that the trial court gave the

petitioner over 1 9 months to either reconstruct the record or

to file an amended petition. In addition, the trial court set the case for a hearing on 23 occasions. At the October 1, 1999 hearing, the petitioner’s counsel stated that any amended petition would be filed by October 5, 1999. Counsel for the petitioner then sent the court a letter dated October 25, 1999, again requesting additional time to file an amended petition. The trial court allowedthe extension of time. A hearing on the forthcoming petition was set for November 5, 1999. However, on November 3, 1999, the trial court ult imately dismissed the case because the petitioner had still failed to file

an amended petiti

on. In its orde

r, the trial court

state d that it had extended every opportunity to the petitioner to file an amended petition, and that the petitio ner had failed to comply with its orders and with the remand of this court.

When we review the dismissal of a post-conviction petition, we must affirm the trial court’s dismissal unless the record preponderates against the dismissal. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990). After reviewing the record before us, we agree with the trial court that the petitioner has been afforded ample opportunity to file an amended petition for post-conviction relief. In addition, considering that the trialcourt gave the petitioner over 19 months to file his amended petition, and given the current one-year statute of limitations for filing post-conviction petitions, or motions to reopen prior petitions, the trial court gave the petitioner more th

an a reasonable

time to filesuch amended petition. See Tenn. Code Ann. § 40-30-202(a). Theref ore, the petitioner has failed to show how t

he record prep

onderates aga

inst the trial cour

t’s dismissal.
Conclusion

After review, we aff

irm the trial cour

t’s dismissal of the p

etitioner’s petitio n for postconviction relief.

___________________________________ JOHN EVERETT WILLIAMS, JUDGE