# FILED December 18, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT KNOXVILLE JULY SESSION, 1997

OLEN EDWARD HUTCHI SON, ) C.C.A. NO. 03C01-9702- CR-00065 ) Appe llant, ) ) CAMPBELL COUNTY ) V. ) ) HON. J AMES WI TT, J UDGE STATE OF TENNESSEE, ) ) Appellee. ) (POST- CONVICTI ON)

FOR THE APPELLANT : FOR THE APPELLEE : CHRISTOPHER VAN RI PER JOHN KNOX WALKUP STUART & VAN RIPER Attorney General& Reporter 300 Market Street Clinton, TN 37716 JOHN P. CAULEY Assistant Attorney General 2nd Floor, Cordel l Hull Bui lding 425 Fifth Avenue North Nashvill e, TN 37243-0943 WILLIA M PAUL PHILLI PS Distri ct Attorney General MICHAEL O. RI PLEY Assistant Distri ct Attorney General P.O. Box 323 Jacksboro, TN 37757
OPINION FILED ________________________ AFFIRMED THOMAS T. WOODALL, J UDGE-2- 

# OPINION

The Petiti oner, Olen Edward Hutchison, appeals as of rightfrom the trialcourt’s dismissal of his second petition for post-convi ction rel ief. The dismissal followed argu ment by both parties on the State’ s motion to dismiss. The trialcourt all owed bo th parti es to arg ue the m erits of the S tate’s mo tion to dismiss, but no evidence was submitted by either si de at the hearing. W e affirm the judgm ent of the tria l court.

In hisappeal, Petit ioner pr esents t hree (3)issues f or revi ew: (1) The trial court erre d by not fi nding that the statute of limitat ions codifi ed in Tennessee Code Annotated secti on 40- 30-202(a) violated the due process ri ghts of Petitioner and by not making findi ngs of fact mandated by our

supre me c ourt in Sand s v. State , 903 S.W .2d 297 (Te nn. 1995). (2) The trial court erred by findin g that s tatem ents in clude d within an exhibit attached to the petition for post-convi ct ion reli ef were no t “ Brady ” materia l. (3) The trialjudge w ho gran ted the S tate’s mo tion to dismiss was not one who was properly designated to hear thi s petiti on for post-convi ction relief

pursuant to Tennes see Code Annotated section 40- 30-205.

F ACTUAL BACKGROU ND

Petiti oner was c onvic ted o f the fi rst degree murder of Hugh Huddleston , conspiracy to take a l ife, and s olici tation t o commit fir

st degree murder. For the convi ction of first degree murder, hereceived the de ath penalty. The convicti ons and sentences were af firmed on d irect appe al. State v. Hutchison , 898 S.W .2d 161 (Tenn . 1994), cert
. denied , ____ U.S. ____, 116-3-

S.Ct. 137 (19 95). On May 4, 19 95, Petition er filed his first pe tition for postconvicti on relief . The tri al court de nied the pe titi on f ollowing an evide ntiary hearing on September 27, 1995, and the dismissalof the f irstpetition for p ostconvicti on relief w as recently affirmed by a pan el of this cou rt. Olen Eddie Hutchison v. State , No . 03 C01- 9601 -CC- 0003 3, C ampbe ll Coun ty (Ten n. C ri m. App., Knoxvill e, Oct. 3, 1997). In t he case sub judice , Petit ioner fi led his second petiti on for post-co nviction relief pro se on August 1, 1996. The State fi led a motion to dism iss this second petit ion on August 29, 1996. Petit ioner fi led a pro se respo nse o n Sep temb er 12, 1 996, a nd Pe titioner’s couns el in the first po stconvic tio n pet ition appeared in t he present case and filed a motion in t he case sub judice on Se ptem ber 17 , 1996 . The tr ial cou rt allowe d a he aring in this matter o n Septe mber 1 9, 1996 , and dism issed the petition.

I n the seco nd pos t-conviction petition wh ich is the su bject of th i s appe al, the Petit ioner allegesthat the State withhe ld exculpatory m aterial before and during the o riginaltrialwhich led to his convi ctions. Petiti oner alleged that the material withheld was i n violat ion of themandates found in Brady v. Mary land , 373 U.S. 83, 83 S.Ct. 1194 ( 1963). The specif ic item argued in thi s court to be Brady material i s a statement purportedly made by one Tony Goi ngs to an insurance company investi gator. I n this recording of t he statemen t given by Mr. Goings, one D avid Da vis told Mr. Goings abou t a conve rsation he had with Richard Miller w ho wa s, as d escrib ed by o ur sup reme court in the directappe al, the chiefprosec ution witne ss. Hutchison , 898 S.W.2d at 165. Petitioner a dmits in his brief t hat the repor t from the i nsurance investigator was included i n a large vol ume of documents w hich Pet itioner’s attorney was allowed to examine pri or to the hearing of the original po st-convictio n petition. Petitioner argues , however,-4-

t hat he and his counselwere not prov ided with adequate time to “examine an d utili ze” the investi gative r eport in or

der to incl ude it i n the originalpost-convi ction hearing
.
The trialcourt dis missed the present petiti on because it was filed after th e expirat ion of theapplicabl e one year stat ute of li mitations and a pr io r petiti on for post-convi ction rel ief had be en previo usly filed an d heard on its merits. He als o ruled that the clai ms and issues asserted had been waived pursuant to Te nness ee Co de Ann otated se ction 40-3 0-206(g ), and the facts alleged in the Petition, ev en if tak en as true, failedto sho w that th e Petitio ner is entitl ed to reli ef as the al leged exculp atory evi dence does not const itute “ Brady ” material pursu ant to Tenn essee C ode Ann otated section 4 0-30-206(f).

D UE PROCESS VIOL ATION
Rely ing upon Sand s v. State , 903 S.W.2d 297 (Tenn. 1995), the Petiti oner argues that the t rial cour t erred by

not making certain fi ndings of fact as mand ated in tha t d ecision of our supreme cour t, and by not

findingthat the statute of limitat ions violated his due process ri ghts. In Burford v. State , 845 S.W.2d 204 (Tenn. 1992), our supreme court he ld that t he three-yea r statute of li mi tationsthen in ef fect on post-convict ion peti tions compli es with th e due process requirements of the United States and Tennessee Con sti tutions. Howeve r, the supreme court also recog nized that “before a state m ay termin ate a cl aim for

fai lur e tocomp ly with procedur al requir ements such as stat utes of limitati ons, due p roces s requ ires tha t poten tial l i tigants be provided an opportu nity for the pr esentation of clai ms at a m e aningful time and in a-5-

meaningful manne r.” Id . at 208 (citat ions omitted). The refore, the suprem e court found that in parti cu lar cir cumstances, appli cation of the statu te of li mitations mi gh t not affor

d a reasonable oppor tunity to have an is sue heard and decided. Id
. In add ition, the court s ugge sted th at “[c]lea rly, it wou ld be h elpful in suc h instancesfor the l egislat ure to adopt a shorter statute of l imitati ons for lat er arisinggrounds provi ding such a reasonabl e opportuni ty .” Id . In a sepa rate concurring opinion Justice Daughtrey al so noted that “[i] t obviously would be best if the Te nnes see G enera l Asse mbly would enact l egislat ion deali ng spec ifically with the ef

fect of T.C. A. § 4 0-30-102 [statute of l imitati ons on post-conv iction matters] on later-a rising grounds .” Id . at 212.

Petition er’s first petition for p ost- convic tion relie f attack ing his convicti ons and sentences was ti mely fil ed and an evidenti ary heari ng was held. Not only does the stat ute oflimitations bar the second peti tion for post-convi ction relief, but it is also barred by the provi sions of Tenn essee Code Annotated section 40-30-202 (c) which states i n part, “ [t]hi s part contemplates the f iling of only one (1) peti tion for post-convi ction rel ief. I n no event may more than one ( 1) petiti on for pos t-conv iction re lief be fil ed attacki ng a single j udgment.” Tennessee Code Annotated sect ion 40-30-206( b) provi des in pertin ent pa rt that “[i]f it plainly a ppe ars from the faceof the petition, any annexed exhibi ts or the prior proceedingsin the cas e that . . . a prior petiti on was fil ed attacki ng the convic tion and wasresolved on the merits, the judge shall enter an order dismissing th e petition.”

As noted above, Pet itioner candidly admits that

he had access to t he alleged “ Brady ” materialprior to the hearing on t he firs t petition for po stconvicti on relief. There is no evidence in the record to suggest that Peti tioner-6-

was not provi ded an opportunit y for t he presentati on of clai ms at a meaningful time and in a m eaningful m anner as req uired by Burford , 845 S.W.2d at 208.

There fore, this issu e is withou t merit.

F INDING THAT ALLEGED EXCULPATOR Y INFORMATION WAS N OT “ BRADY” MATERIAL

The trial cou rt was ju stified in dism issing this sec ond p etit ion for pos t-conv iction relief

on the basis t hat it hadbeen fil ed after expirati on of the statu t e of li mitations , and another pet ition f or reli ef had already

been fil ed and h eard on the merits . However, t he trialcourt err ed in rely ing upon Tennessee Code Annotated sect ion 40-30-206(f) to suppor t dismissalof the petiti on without an evide ntiary hea ring.

In its order

di smis sin g the peti tion, t he trialcourt stated that the allegati ons in the petiti on, even if true, failed to

show that t he Petiti oner was entitl ed to relief, failed to show that t he claims for relief had not been waived, and made a finding t hat the allege d excu lpatory eviden ce did not consti tute “ Brady ” mate rial. In its ruling from the ben ch, th e trial co urt expres sed doubt that Petitione r could pro ve the alleg ations co ntained in the petition
.

Included within t he petition are the all egations t hat the prosec ution know ingly presented perj ured testi mony during the tri al and withheld exculpa tory informati on, among other c laims . In esse nce, it appears from the record that the trialcourt m ade a d etermin ation, witho ut an evid enti ary hearing, t hat it di d not believe the allegation s.-7- The standa rd in Ten nesse e Cod e Anno tated sec tion 40-3 0-206(f) requiresthe trial court to assume the facts alleged to be true, and then make a determinati on that the Pet itioner is sti ll not

entitl ed to anyrelief. Also, there are allegati ons in the p eti tion that the claims fo r relief were n ot waived . We respe ctfully find that

the tri al court ap plied th e wrong standard of review and t he petiti on shou ld not have been di smissed pursuant to Tennessee Code Annotated section 40-30-206(f). However, since w e determined that the petit ion was prope rly dismiss ed bec ause it ha d been filed after exp iration of t he statu te of limitat ions and a prior p ost-con victi on petiti on had been fil ed and heard on the merits, any error by

the trialcourt was harmless.

T RIAL COURT ’ S JURISDICT ION

Petiti oner argu es th at Ju dge Ja mes C. Witt did not have jurisdict ion to enter an or

der dismissi ng the petiti on for post- convicti on relief . In support of his argument, he rel ies upon Tennessee Code Annotated sect ion 40-30-205(b) which provides as foll ows:
At either t he trialproceeding or an appellate proceeding reviewing the proceeding, the presidi ng judge of the ap propr iate co urt sha ll assign a judge to hear the petit ion. The iss ue of competency of counsel may be heard by a judgeother tha n the origi nal hearing judge. If a pres iding j udge is un able to assign a j udge, the chi ef justice of the supreme court shall desi gnate an approp riate judge to hear the matter.
It appears from the recor d that Judge Witt was

designated to preside overthe trialof the originalcharges and also was designated to hear the fi rst petiti on for post- convicti on relief
. Counsel for Pet itioner did not chal lenge the-8-

approp riateness of Judge Witt to hear the case unt il the morning of the hearing on the S tate’s mo tion to dism iss.

W hile we rec ognize that the language contained in Tennessee Code Annotated section 40-30 -205(b) app ears to be man datory , we als o note there is nothing in the record to indi cate that the presidi ng judge of t he Circuit Court of Cam pbell County would n ot a ppoint Judge Witt to hear thi s particu lar peti tion. Even if it

was error for Judge Witt to hear the S tat e’s motion to dismiss wit hout strict complian ce with Tennessee Code Annot ated sect ion 40-3 0-205(b) , we hold thatit was harml ess error. In May v. Sta te , 589 S.W.2d 933, 934 (Tenn . C ri m. App. 1979), our court held that it was harmless error for t he trial court to dismiss a petiti on for post- convicti on relief with out an eviden tiary he aring a nd no t com ply with a statuterequiri ng the court to d esignate a j udge other than t he one who presided at t ria l to hear a related post-convict ion matter. This issue i s without merit.
Finding no reversi ble error , we affi rm the judgmentof the trial court. The senten ce of dea th wil l be carri ed out as provi ded by law on the 8th day of April, 1998, unless ot herwise order ed by the Tennessee Supreme Court or other proper a uthority.

____________________________________ THOMAS T. W OODALL, Judge
CONCUR:

___________________________________ DAVID H. WELLES , Judge-9-

___________________________________ JOHN K. BYERS, Senior Judge