### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs O

ctober 30, 2001
BILLY JOE HENDERSON v. STATE OF TE NNESSEE
Direct Appeal from the Criminal Court for Knox County No. 71679 Mary Beth Leibowitz, Judge

No. E2001-00438-CCA-R3-PC November 19, 2001

The Appellant, Billy

Joe Henderson, ap

peals the dismissal of his

petition for post-conviction relief without the appointment of counsel and an evidentiary hearing. Hende rson is currentl y serving a life sentence in the Tennessee Department of Correction pursuant to his 1998

conviction for fi

rst degree murder. Following a review of the record, we affirm in part an

d reverse in

part the judgment of the post-conviction court dismissing the petition. Because Henderson in part states a “colorable claim,” the case is r emanded for the appoin tment of co unsel and an evidentia ry hearing.

Tenn. R. App. P. 3; Judgm ent of the Crimina

l Court is Remanded.

D AVID G. H AYES , J., delivered the o pinion of the court, in which J AMES C URWOOD W ITT , J R

. and J OHN E VERETT W ILLIAM S , JJ., joined. Billy Joe Henderson, Pro Se , Whiteville, Tennessee.

Paul G. Summers, Attorne y General and Re

porter; Michael M

oore, Solicitor Ge

neral; T . E. Williams, III, Assistant Attorney Genera l; Ra ndall E. Nichols, District Attorney General, for the Appellee, State of Tennessee.

OPINION Factual Background

On February

24, 1998, the Appellant was convicted of first-degree murder following a jury trial, and he was later sentenced to life imprisonment. Thereafter, his conviction and sentence were aff irm ed on appeal. See State v. Billy Joe Henderson , No. 03C01-9804-CR

-00136 (Tenn. Cri

m. App. at Knoxville, June 18, 1999).-2-

On December 1, 200

0, the Appellant f

iled a petition for

post-conviction r

elief. The postconviction court dismissed the petition without appointing counsel to aid the Appellant. The postconviction court found that th e Appellant faile

d to state a “colorable claim” because the issues raised in his petition for post-conviction relief had previously been adjudicated on direct appeal.
ANALYSIS
This court has observ

ed that there is

a discernible trend toward appointing counsel to assist pro se appella

nts in post-conviction proceedings, providing opportunities to amend petitions, and allowing evident iary hear in gs. Rickman v. State , 972 S.W.2d 687, 692 (Tenn. Crim. App. at Jackson, December 1, 1997) (ci ting Carmley v. State , No. 03C01- 9305-CR-00167 (Tenn. Crim. App. at Kno xville, January

13, 1994)). When a “

colorable claim”

is presented, it is r

arely prop

er to dismiss a pro se petition without the appointment of counsel. Swanson v. State , 749 S.W.2d 731, 734 (Tenn. 1988). Nevertheless, if there is "a lack of legal merit, appear ing upon t he fac e of the petition," then the post-conviction court may dismiss the petition without permitting an appellant to confer with counsel and without an evidentiary hearing. Burt v. State , 454 S.W.2d 182, 184 (Tenn. Crim. App. 1970); see Allen v. State , 854 S.W.2d 873, 875-76 (Tenn. 1993); Swanson , 749 S.W.2d at 734. In other words, "a clear but patently nonmeritorious petition may be dismissed summarily ," without the appointment of counsel or an evidentiary hearing. Martucci v. State , 872 S.W.2d 947, 949 (Tenn. Crim. App. 1 993); see Cureton v. Tollett , 477 S.W.2d 233, 236 (Tenn. Crim. App. 1971).
The Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-201 to -222 (1997), requires that the grounds for relief be specified and that the facts as set forth must establish a “col orable claim.” A “colorable claim” is a claim in a petition for post-conviction relief that, if taken as true, in the light most favorable to an Appellant, would e ntitle an Ap pellant to reliefunder the PostConviction Procedure Act. Tenn. Sup. Ct. R. 28, § 2(H). Apetition sets forth a “col orable claim” if it alleges fac

ts 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. Rickman , 972 S.W.2d at 693 (cit ing Carmley v. Sta te , No. 0 3C01-9305-CR-00167 (Tenn. Crim. App. at Knoxville, January 13, 1994)). In deciding whether a “colorable claim” is presented, pro se petitions should be held to less stringent standards than formal pleadings drafted by lawy ers. Allen , 854 S.W.2d at 875. If the availability of relief cannot be conclusively determined from a pro se petition and the accompanying

records, an appellant must be given the aid of counsel. Swanson , 749 S.W.2d at 734.
The Appellant’ s chall enge to his conviction is based upon allegations of ineffective assistance of counsel. Spe cif ica lly, the Appellant identifies six factual grounds which he contends
are “incorporate[d] within the s ole issue of ineffective assistance of counsel.” The Appellant contends in his brief that we should remand his case to the post-conviction court in order to

provide the App ell ant an o ppo rtu nit y, with the assistance of counsel, to amend his petition. The Appellant argues that he should be permitte d, under the inclu

sive heading of

ineffective as sistance of couns el, to raise,-3-

1. Whether th

e court erred in allowing the State to introduce evidence that the [Appellant] threatened ano ther man with

a knife one week

before the fatal stabbing without first conducting a full jury -out hea ring pursuant to Tennessee Rule of Eviden ce 404(b) and deter mining the issue ot

her than propens

ity for whic

h th i s incident was prob

ative, and consid

ering its prejud

icial impact.

2. Whether the court erred in informing the jurors of the release eligibility dates and authorizing them to ‘weigh and consider the meaning of a sentence of imprisonment’ in their deliberation, where the only issue for the jury wa s the degree of homicide applicable to the proof presented.

3. Whether the court erred in failing to allow the [Appellant] to have a

hearing with proof on the issue of the voluntariness of his confession.

4. Whether the court

erred in failing to allow the [Appellant’s] investigator to attend the trial and not be subject to the Rule of Sequestration.

5. The court erre

d in preventing th

e [Appellant’s] cou

nsel f rom imp eaching the State ’s w itness, Brenda We lls, with evidence

of her prior state

ments under oath concerning the

violence of her h

usband, the dece

dent.
6. Whether the evidencewas sufficient to convict [the Appellant] of pre-mediated (sic) first degree murder.
However, the Appellant raised issues one through five on direct appeal of his conviction. See State
v. Billy Joe Henderson , No. 03C01-9804-CR-00136 (Tenn. Crim. App

. at Knoxvill e, June 18, 1999). Because these issues were previously determined on direct appeal, the judg ment of the p ostconviction court dismissing post-conviction issues one through five is affirmed. See Tenn. Code Ann.§ 40-30-206 (1997) ; Overton v. State , 874 S.W.2d 6, 12 (Tenn. 1994) (issues previously raised on direct appeal may not be relabeled and relitigate d under an ineffectiveness claim).

The Appellant’s sixth issue which is raised in his petition underan ineffectiveness claim was not raised on direct appeal. The Appellant argues that he received ineffective assistance of counsel because sufficiency of the evidence was not raised on direct a ppeal. Because the petition a llege s facts showing that the conviction resulted from the abridgment of a constitutional right and sufficiency of the evidence was not previously determined, we find

that the Appellant

has stated a “colorable

claim.” Therefore, we

reverse the judgm

ent of the post-con viction dismissing i

ssue six, and remand for the appointment of counsel to the aid Appellant in filing an amended petition and for an evidentiary hearing to follow.-4- CONCLUSION
Based upon the fo regoing, we find that the Appellant has stated a “colorable claim”, i.e. whether he received the

ineffective as sistance of couns el for failure to

raise sufficien

cy of th e evidence on direct appeal. Therefore, the judgment of t he post -conviction court dismissing the Appellant’s petition for post-conviction relief is reversed as it relates to issue six, sufficiency of the evidence. The judgment is otherwise affirmed. The case is remanded for the appointment of counsel and an evide ntiary hearing.

___________________________________ DAVID G. HAYES, JUDGE