FILED

October 6, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

AUGUST SESSION, 1998

TIMOTHY R. POWELL, ) C.C.A. NO. 01C01-9708-CR-00379

)

Appellant, )

)

) DAVIDSON COUNTY

VS. )

) HON. FRANK G. CLEMENT

STATE OF TENNESSEE, ) JUDGE

)

Appellee. ) (Post-Conviction)

ON APPEAL FROM THE JUDGMENT OF THE

PROBATE COURT OF DAVIDSON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

TIMOTHY R. POW ELL JOHN KNOX WALKUP

Pro Se Attorney General and Reporter

7466 Centennial Blvd.

Nashville, TN 37209 LISA A. NAYLOR

Assistant Attorney General

425 5th Avenue North

Nashville, TN 37243-0493

VICTOR S. JOHNSON

District Attorney General

BERNARD McEVOY

Assistant District Attorney General

Washington Square, Suite 500

222 2nd Avenue North

Nashville, TN 37201-1649

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Timothy R. Powell, appeals as of right from the order of the

trial court summarily dismissing his second petition for post-conviction relief. We

affirm the judgment of the trial court.

Following a jury trial, the Defendant was found guilty of vehicular homicide

by intoxication and reckless endangerment. His convictions and his effective

sentence of eight years were affirmed by this court. State v. Timothy R. Powell,

C.C.A. No. 01-C-01-9508-CR-00276, Davidson County (Tenn. Crim. App.,

Nashville, Sept. 19, 1996). 

The Defendant’s first pro se petition for post-conviction relief was filed

September 18, 1995. The trial court initially entered an order dismissing the

petition because his conviction was being reviewed on direct appeal. The court

subsequently set aside its order of dismissal and appointed counsel to represent

the Defendant in his post-conviction proceeding. Counsel filed an amended

petition for post-conviction relief on the Defendant’s behalf on June 14, 1996. In

April 1997, the Defendant filed a petition to remove his counsel and a motion for

appointment of new counsel. The Defendant also filed a motion to continue and

reset the hearing date for his post-conviction proceeding. On April 17, 1997, the

trial court granted the Defendant’s motion to reset the post-conviction hearing

date and denied the Defendant’s motion that counsel be removed and new

counsel appointed.
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The post-conviction hearing was then set for June 2, 1997. On June 2,

1997, as reflected in the minutes of the trial court, the Defendant was present

along with his counsel. At that time the court denied the Defendant’s motion for

an interlocutory appeal and for an extraordinary appeal. The court granted the

Defendant’s motion to withdraw his petition for post-conviction relief and granted

the motion by Defendant’s counsel to be allowed to withdraw as counsel for the

Defendant.

On July 18, 1997, the Defendant, acting pro se, filed a lengthy, rambling,

and confusing petition for post-conviction relief. His petition alleges generally that

his right to a fair trial was violated by a biased jury, faulty indictment, selective

prosecution, vindictive prosecution, improper jury instructions, mental

competency violations, double jeopardy, and ineffective assistance of counsel—

all of which rendered his conviction unconstitutional and void.

The trial court found that the petition should be dismissed based upon

Tennessee Code Annotated § 40-30-206(d), which provides as follows:

The petition 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. § 40-30-206(d).
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We do not believe that the trial court erred by dismissing this petition. The

petition does not contain a clear and specific statement of the grounds upon

which relief is sought, nor does it contain a full disclosure of the factual basis of

the grounds asserted. The petition does contain many bare allegations of

violations of constitutional rights and many mere conclusions of law. Although

the statute grants the trial judge the discretion to allow a pro se petitioner fifteen

days within which to amend the petition to comply with the code section, the

statute does not mandate that the judge do so. The trial court noted that the

Defendant’s former pro se petition for post-conviction relief had been amended

with the assistance of court-appointed counsel, and that subsequently the

Defendant petitioned to remove his counsel and eventually moved to withdraw

the prior post-conviction petition. The Post-Conviction Procedure Act

contemplates the filing of only one petition. Tenn. Code Ann. § 40-30-202(c).

The trial court ordered that the petition be dismissed because it did not

contain clear and specific statements of grounds, including full disclosure of the

factual basis of the grounds, and because it contained bare allegations of

violations of constitutional rights with mere conclusions of law and was therefore

not sufficient to warrant further proceedings. In the procedural context of this

case, we believe the trial judge acted within his discretionary authority.

The judgment of the trial court is affirmed.

____________________________________

DAVID H. WELLES, JUDGE
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CONCUR:

___________________________________

JERRY L. SMITH, JUDGE

___________________________________

JOHN K. BYERS, SPECIAL JUDGE