### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Decem ber 15, 200 4 Session

DESHAUN FLY

SMITH v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County

No. 96-A-155 Randall J. Wyatt, Judge

No. M2004-00719-CCA-R3-PC - Filed February 25, 2005

Onappeal, the pe t itioner a vers tha t the post- convicti on court e rred in: ( 1) failin

g to ruleon postconvictioncounsel’ s motion to withdraw prior to ru ling on th e post -convi ction petition; (2) dismissing the peti tion summar ily; and (3) d

ismissing the post- convicti on petition in an untime ly manner. Upon review, we conclude that the post-c onviction court properly dismissed the pe tition without an evidentiary

hearing and that the delay in the disposition of the petition did not prejudice the petitioner. We affirm the denial of post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which J ERRY L. S MITH an d N ORMA M C G EE O GLE , JJ., joined. Mark E. Chapman, Nashville, Tennessee, for the appe llant, Deshaun Fly Smith.

Paul G. Summers , Attorne y G eneral and Repor

ter; Dav id E. Coene

n, Assista nt Attorne

y G eneral ; Victor S. (Torry) Johnson, I

II , District Attorney Gen eral; an d Tom Thurman, Assistant District Attorney Gene

ral, for the appellee, State of Tennessee

.

OPINION Facts and Procedural History Following a jury

trial, the petitione r, DeSha un Fly Smith, was c onvicte d of one count of premedi tated first degree murder

and two counts of attempted first degree murde r. The defendant received a life sentence for the murder conviction and two twenty-five- year se ntences for the attempted first degree murder convictions. The latter sentences were ordered concurrent with one another, but consecutive to the life sentence. The petitioner then filed a motion for new trial, which
was denied by the trial

court in January 1998. On d

irect ap peal, thi s Court af

firmed th e convic tions.-2-

State v. Sh au n F ly Sm ith , No. M1997-00087-CCA-R3-CD, 1999 Tenn. Crim. App. LEXI S 1276 (Tenn. Crim. App., at Nashville, Dec. 17, 1999), perm. to appeal denied (Tenn. 2000).

InOctober 2001, the petitioner filed a pro se petition for

post-conviction relief. Following appointment

of counsel, an amended petition was filed on July 10, 2002. The petition enumerated the follow

ing cla ims: 1) The State use d evidenc e gaine d as a result of the unlawful search and seizure of th e h om e o f V ir a A sh by; 2) The State’s attorney unc onstitutionally failed to disclose to the defense evidence which was favorable to the petitioner; 3) The grand and petit juries were unc onstitutionally selected and impaneled; 4) The petitioner was denied the effective assistance of counsel by counsel’s

failure to proper ly prepare the defense or to object to the introduction into evidence of improper evidence; 5) Newly

discovered

evidence would tend to exonerate the petitione r or mitig ate his alleged role in the offense; 6) The State used illegal evidence ag ainst the petitioner at trial; and 7) The petition er was den ied a fa ir trial a s a resul

t of his co

unsel’s f ailure to properl y investigate the case and

to introduce and

discover evidenc e favor

able to him and by allowing

the case to proceed to trial without proper investiga tion, resulting in the conviction of an innocent man. OnJuly 26, 2002, the State filed its response, requesting that the petition be dismissed for failure to state a c laim

within the purview of the Post-Conviction Relief Act, which had not been waived or previously determined.

Over the twenty-eig

ht months between the filing of the o riginal petition and the court’s disposition, the petitioner was repres en ted by six different counsel, ea ch one withdrawing for di fficulties in representing the petitioner. On Dece mber 4, 2003, the most recently appointed counse l sought to be relieved from representing the petitioner due to the extreme demands and demeaning treatment he received from thepetitioner. On February 18, 2004, before ruling on counsel’s motion to withdraw , the post- convicti on court s ummarily dismissed the post-conviction petition, noting that each claim was either waived or had be en p reviously determined. T he motion to withdraw was subseque ntly denied by

the cour t.

Onappeal, the petitioner av ers that t h e post-c onviction

court er red in not ruling on postconvictioncounsel’s motion to withdraw prior to its disposition of the post-conviction petition, that the court erred in dismissing the petition without an evidentiary he aring, and that the court was not timely in its dismissal of the petition for post- convicti on relie f. Upon r eviewing the rec ord, brie fs, and applicable law, we conclude that the post-conviction court pr operly dismissed the petition1 We have taken judic ial notice of do cum ents co ntained in the file which were not incl uded in the record before

this Co urt.
-3- without anevidenti ary

hearing and that t he delay in the disp osition of t

he petition did

not prejudice the petiti oner. As

such, we affirm t he post-c onviction

court. 1

Issue One

The petitioner initially contends that the p ost-conv iction court erred in failing to rule on counsel’s motion to withdraw prior to denying the post-conviction petition. Rely ing on a theory akin to estoppel, the petitioner argues that fundamental fairness mandated that he be forewa rned that no other counsel would be appointed and that the court’s disposition of his petition was fo rthco ming.
Uponreviewi

ng the r ecord, w e note tha

t six attorneys have

been appointed to represent the petitioner in this matte

r over th e last th

ree plus ye a rs. I

n fact, t he record refle cts, and t

he postconvictioncourt noted, that the State’s response had been pending since July

26, 2002. We do not agree, as the petitioner argues, that the court’s patienc e should be further taxed simply because it had generously

allowed for

amended filings by

the petitioner and his various counsel up to the time of disposition.

We co nclude that the post-conviction court was well within its authority to cons ider th e petition, which had not been amended since July 2002, and to deter mine, “if the factua

l alleg ations, taken as true, fail to show that the petitioner is entitled to relief o r fail to show that the claims for relief have not been waived or previously determined.” Tenn. Code Ann. § 40-30-10 6(f) ( 2004). Uponso doing , the cour t found tha

t all i ssu es had been previously determined or waived and properl y dismissed the petition. We find no error in the post-convi ction cou rt’ s dismissal of the petition prior to ruling on counsel’s motion to withdraw.

Issue Two
Next, the petitioner contends that the post-conviction court erred in summarily dismissing the post-conviction petition because h is pet ition presented a “colorable claim.” Howeve r, upon reviewing the record, we agre e with the post-conviction court that all claims presented by the petitioner were either previously

determined

or waived. As such, we hold that the post-conviction court did not err in summarily dismissing the pe tition.

Inorder to obtain post-conviction relief, a petitioner must de monstrate that their conviction or sentence is void or voidable because of the a bridgment of

any constitutional right. Te nn. Code Ann. § 40-30-103 (2004). The petitione r bears the burden of proving, by clear and convincing evidence, the factual allegations that would entitle the petitioner to relief. Te nn. Code Ann. § 40-30- 11 0(f) (2004). T

he post-c onviction

court’s finding s of fac t are co nclusive on appea

l unless th e evidence preponderates otherwise. State v. Burns , 6 S. W.3d 453, 4 61 (Te nn. 19 99). T hose f indi ngs of fact are afforded the

weight of

a jury verdict , and this Court is bound by the findings unless the-4-

evidence in the record preponderatesagains t those fin dings. Henley

v. State , 960 S.W.2d 572, 578 (Tenn. 1997); Alley

v. State , 958 S.W.2d 138, 147 (Tenn. Crim. App. 1997). This Court may not reweigh or reevaluate the evidence nor sub stitute its infer ences f or those d

rawn bythe postconvictioncourt

. State v. H oney cutt , 54 S.W.3d 76 2, 766 (Te nn. 2001) . Howeve

r, the pos tconvictioncourt’s conclusions of law are reviewe d under a p ur el y de novo standard with no presumption of correctness. Fields v. State , 40 S.W.3d 450, 458 (Tenn. 2001). Upon receipt of a proper or amende d petition, the post-conviction court, [S]hall examine the al legations of fact in the petition. I f the facts alleged, taken as true, fail to show that

the petitioner is entitled to relief or fail to show that the

claims for relie f h ave not been waived or previously determined, the petition shall be dismissed . The order of dismissal shall set forth the court's conclusions of law. Tenn. Code An n. § 40-30-1 06(f) ( 2004) (e mphasis a

dded). A ground is previo usly determined if “a court of competent jurisdiction has ruled on the merits after a full and f air hea ring. A full and f air hearing has occu rred wh ere the

petitione r is afforded the opportunity to call witnesses and other wise present evidence, regardless of w hether the petitioner ac tuall y introduced evide nce.” Tenn. Code Ann. § 40-30-106(h) (2004). Moreover, a g round is waived if: [ T]he petitioner personally or through an attorney

failed to present it for determination

in any proce eding before a court of c ompetent jurisdict ion in which the ground could hav e been p resente d unless: (1) The claim for

relief is based upon a constitutional right not recognized as existing at the time of

trial if e ither the

federa l or state const itution req uires retroactive application of that right; or (2) The failure to present

the ground was the result of state action in violation of the federal or state constitution. Tenn. Code Ann. 40-30-106(g) (2004). Assessing ea ch cl ai m i nd iv id ua ll y, in grounds one and six, the petitioner contends that illegal evidence was introduced at trial. Specifically , the peti tioner challenged the admission of guns which, he contends, were seized illegally from the home of Vira As hby, and a g un seized from the hotel
room in which he was apprehended. As conce rning the evidence obtained from the Ashby home,
we note that

this Court ruled on the relevance of this evidence on directappeal, holdign that it was
more probative than prejudicial. Therefore, any additional allegations raised in this proceeding are waived for failure to assert them on direct appeal. Regar ding the evidence seized from the hotel, we conclude that this is sue was w aived for failur e to ra ise it on dir

ect appe al. As suc

h, the post

convicti on court d

id not err in dismissin

g these issues.

Inground

two, the p etitioner

asserts t hat the Sta

te did not p roperly disclose e vidence favora ble to the def

ense. However, we agr

ee with the post- convicti on court t hat this cl aim

has been previous ly

determined, as it was raised and denied in the petitioner’s motion for new trial. Further , the petitioner has waived the issue for failure to raise it on direc tappeal. Finally

, we note that this is merely a ba

re allega tion, witho

ut any stated fa ctual sup port. The refore , we conc lude that

the postconviction court’s dismissal of this issue was not in error.2 In hi s t hir d amended mot ion f or new tri al, the peti ti oner a sser ted that two i nd ividua ls poss essed newly disco vered evide nce, b ut only p rod uced one in divid ual, Fe rnand o R heem s, at the he aring.
-5- Inground three, the petitioner alleges that the grand and petit juries we re uncon stitutiona

lly selected and impaneled. More specifically , he avers that, one juror k new the p etitioner

and his fa mi ly, but lied

about tha t knowled ge; tha t the jury was impro

perly impanele d in Nashv

ille due to the publicity

surround ing the c ase; tha

t the jury should hav e been in structed that Arne tte Hay es could have been charged as an a ccomplice; and that the jury instructions unfairly

lessened the standard of reasonable doubt. Addressing the conte

ntions in order, we first con clude that the issue concerning the untruthful juror was raised and denied in the motion for new tria l; theref ore, it has been previously

determined. Ad di ti on al ly, the petiti oner fa iled to ra ise the iss ue on dire ct appea

l; therefore, it has been waived. As to the issue

of venue , we ag ain note

that this issue was previously dete rmined when it was raised inthe petitioner’s motion for new trial and

denied by

the trial court. Moreover , the peti tioner a gain failed to raise the issue on direct appeal; therefore, it has been waive d. Regarding the instruction of accomplice liability, we conclude that this issue was pre viously determined on

direct a ppeal, as this Courtfound tha

t t he issu e was waived for failure to make a timely objection at trial. Shaun Fly Smith , 1999 Tenn . Crim. App. LEXI S 1276, at *23 and 25. As to the final contention, concerning the reasonable doubt jury

instruction, we conclude that the issue was raised and denied in the motion for new trial. Mor

eover, t he petitio ner has w aived thi s issue as a claim for post-conviction relief by failing to prese nt it on dire ct appea

l. In groundsfour and seven, the petitioner asserts c laims of in effec tive assis tance of counsel; sp ec if ic al ly, he avers that counsel failed to properly prepare the defens e, failed t o object to the introduction of improper evidence, and failed to properly

investigate the case. However, the issue of ineffective assistance was litigated a nd resolved

against the petitioner on

direct a ppeal. B ecause ineffective assistance of couns el con stitutes a “single ground for reli ef,” we

agree with the po stconvictioncourt that

this issue has been previously de termined and may not be re litigate d, despite the fact that the petitioner has presented different factual bases for his claim. See Thompson v . State , 958 S.W.2d 156, 161 (Tenn. Crim. App. 1997). Mo reover , as the po st-convi ction cou rt pointed out, the additional allegations presented in the post-conviction petition are waive d because they were not raised on direct appeal.

Inground

five, the petiti one r alleged that newly discovered evidence, specifically the testimony of Derrick Sawy

ers, woul d tend to exonerate him or mitigate his role in the offense. Again, upon reviewing the record, we a gree that this issue has been pre viously determined beca

use it was raised and denied

in the pet itioner’ s motion for

new tria l. 2 Moreover, as the post-conviction court noted, the

petitione r failed to state f acts supporting that this evidence was newly discovered
or that it would have been beneficial to the defense. As such, we find no error in the post-conviction court’s dismissal of this issue.-6- Issue Three

Fi na ll y, the petitioner avers that the post-conviction court filed its order more than

th ir ty d ays after the filing of the amended petition, in contravention of Tennessee Code Annotated section 40- 30-106(a). He further avers that this “pattern of relaxing time constra ints” rendered the dismissal of his petition surprising and prejudicial. In recently addre ssing thi s issue, th is Court not

ed that, “statutory provisions which relate to the mode or time of doi

ng an a ct to which the statute applies
are not to be mandatory but direc tory only .” William AlexanderCocke Stua rt v. State , No. M2003- 01387-CCA -R3-PC, 2004 Tenn. Crim. App. LEXI S 405, at *5 (Tenn. Crim. App., at Nashville, May 4, 2004) (quot ing State v. Jones , 729 S.W.2d 683, 685 (Tenn. Crim. App. 1986)). This Court further stated that, absent prejudice to the petitioner, any resulting error “must be harmless.” Id.

Ini ti al ly, we note that the post-conviction court did indeed file its order outside the statutory time period. However, contrary to the petitioner’s argument, we do not view the court’s actions as prejudicial to the petitioner. The record reflects that the

time lapse

afford ed the pe titioner m ultiple opportunities to amend h is p et ition via various counsel appointed by the c ourt; however, the petitioner failed to seize thes e opportunities. As such, we conclude that the post-conviction court’s failure to comply with the statutory time period did not prejudice the petitioner; thus, any existing
error w ould be ha

rmless.

Conclusion Based on the foregoing , and the record as a whole, we affirm the denial of post-conviction relief.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE