This court consolidated the petitioner’s two cases. 

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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 24, 2008

MICHAEL H. PALMER v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Sullivan County

Nos. C53,731; C53,471 Robert H. Montgomery, Jr., Judge

No. E2007-02538-CCA-R3-PC - Filed March 10, 2009

The petitioner, Michael H. Palmer, appeals the dismissal of his pro se petitions for post-conviction 1

relief in the Criminal Court for Sullivan County. He claims to have entered guilty pleas to reckless

endangerment and telephone harassment and to have entered a nolo contendere plea to assault. On

appeal, he contends that the trial court erred in dismissing the petitions without appointing counsel

and in refusing to rescind the order dismissing the post-conviction petitions. We affirm the

judgments of the trial court. 

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

JOSEPH M. TIPTON, P.J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY

L. SMITH, JJ., joined.

Ben H. Houston, Knoxville, Tennessee, for the appellant, Michael H. Palmer.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney

General; H. Greeley Wells, Jr., District Attorney General; and Teresa Ann Nelson, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The brief record reveals the following facts. The petitioner filed two motions “for post

sentence relief” from his three convictions in two cases. The trial court treated them as petitions for

post-conviction relief and issued orders, filed May 23, 2007, stating that the petitioner did not verify

his petitions under oath and did not comply with the requirements set out in Tennessee Code

Annotated sections 40-30-104 and -106, but the trial court granted the petitioner fifteen days in

which to file amended petitions conforming to the requirements of the Post-Conviction Procedure

Act. In these same orders, the trial court admonished the petitioner that failure to submit amended

petitions complying with the Act would result in dismissal of the petitions. The petitioner did not

submit anything further to the trial court, which dismissed the petitions in orders filed August 8,

2007. 
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At some point thereafter, the petitioner obtained counsel, who, on August 28, 2007, filed two

motions “to set aside order dismissing petitioner’s petition for post-conviction relief and to grant the

petitioner leave to file an [amended] petition for post-conviction relief within 30 days.” The State

responded to this motion, and a hearing was set. At the hearing, the petitioner’s counsel informed

the trial court that the petitioner had injured his knee and would not be at the hearing. The trial court

allowed the parties to continue the hearing (to set aside the order dismissing the petitions) to ensure

the petitioner’s presence. The trial court and the petitioner’s counsel discussed the thirty-day notice

of appeal period, and a new hearing date was set for October 12, 2007, at which the petitioner again

did not appear. His counsel stated that the petitioner did not attend a scheduled bail hearing earlier

that week. The trial court issued orders denying the motions to set aside the orders dismissing the

petitions.

We note that the petitioner’s notices of appeal refer only to appeals of the orders denying the

motions to set aside the dismissal orders. The petitioner’s brief, however, assails both the dismissal

of the post-conviction cases and the denial of the motions to set aside the dismissals. The State

responds to both contentions. Although the dismissal orders are not included in the notices of

appeal, they were addressed by both parties. The filing of a notice of appeal, however, is not

jurisdictional in criminal cases, and we waive the filing of the notices of appeal in the interest of

justice of the orders dismissing the post-conviction petitions. T.R.A.P. 4(a). 

 

The petitioner contends the trial court erred by dismissing the pro se petitions without

appointing counsel as he claims the court was required to do by Tennessee Code Annotated section

40-30-107 (2006). He asserts that he is indigent, and as such, was entitled to appointed counsel.

Relying on State v. Swanson, 749 S.W.2d 731, 734 (Tenn. 1988), he argues that when “a colorable

claim is presented in a pro se petition, dismissal without appointment of counsel to draft a competent

petition is rarely proper.” Id. The State responds that the trial court properly dismissed the petitions

because the petitioner did not comply with Code sections 40-30-104(d) and (e) (2006) and that the

trial court was not required to appoint counsel because the petitioner did not allege a colorable claim

for relief. 

We agree with the State under the circumstances of this case. According to Code section 40-

30-106(b) (2006), a trial court may summarily dismiss a petition that fails “to state a factual basis”

for the relief demanded. The petitioner is required to comply with the requirements listed in Code

section 40-30-104 (2006), including listing all claims for relief known to the petitioner and verifying

under oath that all claims have been presented in a petition, as well as explaining why a ground for

relief was not presented in an earlier proceeding. T.C.A. § 40-30-104(d)-(e) (2006). 

 In the present case, the petitioner has not stated a factual basis for post-conviction relief,

explained why an alleged ground for relief was not presented at an earlier proceeding, or verified

each petition under oath. See T.C.A. § 40-30-106(d); id., § 40-30-104(d), (e). The petitioner claims

that he pled guilty to charges of phone harassment and reckless endangerment and that he pleaded

nolo contendere to domestic assault. He claims he entered his pleas on the advice of his attorneys,

but he states that he is innocent of the crimes; that he never saw copies of the complaints against

him; that his wife, the complainant, participated in a conference with him and his attorney and

advised him to plead guilty, and that he did not know she was the complainant against him; and that

the crimes did not take place in Sullivan County. “Post-conviction relief is not a forum to review
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errors of law as a substitute for direct appeal.” State v. McClintock, 732 S.W.2d 268, 272 (Tenn.

1987). The Post-Conviction Relief Act states that “[a] bare allegation that a constitutional right has

been violated and mere conclusions of law shall not be sufficient to warrant any further

proceedings.” T.C.A. § 40-30-106(d). Contrary to appellate counsel’s assertions, the petitioner did

not allege deficiency and prejudice in his claim of ineffective assistance of counsel, and he did not

explain why he did not waive any of his alleged constitutional defects by not using the time granted

to him by the trial court to amend his petition and to verify the factual allegations by oath. “There

is no constitutional right to an attorney in state post-conviction proceedings.” Coleman v.

Thompson, 501 U.S. 722, 752 (1991). In view of the petitioner’s failure to comply with the PostConviction Procedure Act’s requirements, the trial court could have properly dismissed the petitions

at that point. T.C.A. § 40-30-106(d). However, the trial court allowed the petitioner fifteen days

in which to amend the petition. T.C.A. § 40-30-106(d). The petitioner chose not to avail himself

of this option, although he did subsequently obtain counsel. The record also reflects that although

the petitioner did not appear to have been incarcerated at the time of his two hearings to set aside the

order dismissing his petitions for post-conviction relief, he did not attend either hearing. The

petitions were properly dismissed. 

The petitioner contends the trial court erred in refusing to rescind its order dismissing the pro

se petitions for post-conviction relief. As noted above, however, the trial court properly dismissed

the petitions after affording the petitioner time in which to conform his petitions to the requirements

of the Post-Conviction Relief Act. See Powell v. State, 8 S.W.3d 631, 633 (Tenn. Crim. App. 1998)

(affirming summary dismissal of petition for post-conviction relief when 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 petitioner insists that he has presented

a colorable claim for relief, specifically that his trial counsel was ineffective. In his brief, the

petitioner cites Rickman v. State to say that a “petition sets forth a colorable claim if it alleges facts

showing that the conviction resulted from an abridgment of a constitutional right and demonstrates

that the ground for relief was not previously determined or waived.” Id., 972 S.W.2d 687, 693

(Tenn. Crim. App. 1997) (citation omitted). However, the petitioner does not satisfy the Rickman

criteria to avoid the summary dismissal of his petitions for post-conviction relief. Although the

petitioner states that his constitutional rights have been abridged, he has failed to “demonstrate[] that

the ground for relief was not previously determined or waived.” State v. Rickman, 972 S.W.2d at

693; accord T.C.A. § 40-30-104(e). His failure to comply with the procedural requisites precludes

a court from finding that the petitioner has presented a colorable claim for relief. 

Based on the foregoing and the record as a whole, we affirm the trial court’s dismissing the

petitions for post-conviction relief. 

___________________________________ 

JOSEPH M. TIPTON, PRESIDING JUDGE