        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs April 26, 2011

                   CHARLES NASH v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Hamilton County
                         No. 277377    Don W. Poole, Judge




                  No. E2010-02083-CCA-R3-PC - Filed June 10, 2011


Following a jury trial, the Petitioner, Charles Nash, was convicted of first degree murder and
especially aggravated robbery. This Court affirmed his convictions on direct appeal. See
State v. Charles Nash, No. E2008-00951-CCA-R3-CD, 2009 WL 2461178 (Tenn. Crim.
App., Knoxville, Aug. 12, 2009), perm. to appeal denied, (Tenn. Mar. 1, 2010). The
Petitioner filed a timely petition for post-conviction relief, however, the post-conviction court
summarily dismissed it without conducting an evidentiary hearing. In this appeal, the
Petitioner contends that he presented colorable claims in his petition and that the post-
conviction court erred when it dismissed his petition without an evidentiary hearing. The
State concedes that the trial court erred. We agree and remand to the post-conviction court
for proceedings consistent with the Post-Conviction Procedure Act.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                    Remanded

D AVID H. W ELLES, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.

Charles Nash, Appellant, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; and William H. Cox, III, District Attorney General, for the appellee, State of
Tennessee.
                                         OPINION

                                    Factual Background
       The Petitioner’s convictions stem from the robbery and killing of a Chattanooga
convenience store clerk. Nash, 2009 WL 2461178, at *1. The Petitioner later gave a
statement to police, implicating himself in the crime. Id. at *3. In the Petitioner’s direct
appeal, he argued only “that he unequivocally invoked his right to counsel before the
statement began, thus rendering the statement violative of his Fifth Amendment protection
against self-incrimination.” Id. at *1. This Court noted that the transcript from the
suppression hearing in which the Petitioner first raised this issue was not included in the
appellate record. Id. However, we concluded that, based on the recording and transcript of
the Petitioner’s statement to the police, “the [Petitioner] did not articulate his request for
counsel with such clarity that a reasonable police officer would believe his statement to be
a request for an attorney.” Id. at *5.

        In the Petitioner’s post-conviction petition, under the “Grounds of Petition” section,
he marked that the following grounds applied to his case: (2) Conviction was based on use
of coerced confession; (5) Conviction was based on a violation of the privilege against self-
incrimination; (6) Conviction was based on the unconstitutional failure of the prosecution
to disclose to defendant evidence favorable to defendant; (9) Denial of effective assistance
of counsel; (10) Newly discovered evidence; and (12) Other grounds. The Petitioner
attached a rather impressive eighty-five-page memorandum of law in support of his petition
for post-conviction relief. In the memorandum of law, he articulated the following issues:

       1. Nash was denied his Sixth Amendment right to counsel and the effective
       assistance of counsel under the United States Constitution due to counsel’s
       failure to fully investigate the case in relation to the laws and facts, and
       properly argue the motion to suppress and/or alternatively argue the motion to
       suppress Nash’s pre-trial statement under Missouri v. Seibert, 542 U.S. 600,
       124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004) and other controlling and relevant
       decisions.

       2. A. Nash was denied his Sixth Amendment right to counsel and the
       effective assistance of counsel due to trial counsel’s failure to object and/or
       request a mistrial due to the numerous instances of prejudicial and improper
       comments and conduct by the prosecutor in his case.

       B. Nash was denied his Sixth Amendment right to counsel and the effective
       assistance of counsel under the United States Constitution due to counsel’s



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failure to raise the numerous issues of improper conduct and comments of the
prosecutors as plain error on motion for new trial and direct appeal.

3. Nash was denied his Sixth Amendment right to counsel and the effective
assistance of counsel due to counsel’s failure to fully investigate the case
inclusive of the laws and facts relating to the case and properly present a
defense of duress and/or necessity utilizing available witnesses and evidence
in support thereof; as well as failed to request an instruction from the court
covering said defense(s).

4. Nash was denied his Sixth Amendment right to counsel and the effective
assistance of counsel under the United States Constitution due to counsel’s
suggestion to Nash not to testify and failure to give Nash informed advice
based upon the law and facts of his case as to testifying.

5. A. Nash was denied his Sixth Amendment right to counsel and the
effective assistance of counsel due to counsel’s failure to object, request a
mistrial and/or curative instruction based upon the prosecution’s
misrepresentation to the jury that death qualified as the element of serious
bodily injury which effectively constructively amended the indictment in the
case and/or resulted in conviction for especially aggravated robbery.

B. Nash was denied his Sixth Amendment right to counsel and the effective
assistance of counsel under the United States Constitution due to counsel’s
failure to raise an issue on motion for new trial and direct appeal the
prosecution’s constructive amendment to the especially aggravated robbery
indictment.

6. A. Nash was denied his Sixth Amendment right to counsel and the
effective assistance of counsel due to counsel’s failure to fully investigate the
case including records in the possession of the Chattanooga Police Department
relating to former Investigator-Detective Kenneth Freeman and his disciplinary
and other history with the department, as well as other evidence all which
would have been valuable in calling into question and challenging Freeman’s
credibility not only in the motion to suppress but at trial and sentencing.

B. Nash was denied his Sixth Amendment right to counsel and the effective
assistance of counsel under the United States Constitution due to counsel’s
failure to raise as an issue on motion for new trial and direct appeal the
prosecution’s suppression of exculpatory evidence relating to the Chattanooga

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       Police Department disciplinary history of key prosecution witness former
       Chattanooga Police Department Detective Kenneth Freeman.

       7. Nash was denied his Sixth Amendment right to counsel and the effective
       assistance of counsel under the United States Constitution due to counsel’s
       failure to strike the defense’s motion to consolidate in order to allow Nash to
       be tried and evidence introduced relating to the armed robbery committed by
       Nash at the Southland Market, a mile or so away, and within ten to fifteen
       minutes of the second robbery herein.

       8. Nash was denied his Sixth Amendment right to counsel and the effective
       assistance of counsel under the United States Constitution due to counsel’s
       failure to investigate by contacting a gang expert, psychologist, and/or other
       available expert, as well as move the court for funds to obtain an expert
       witness/services, in order to properly set forth to the jury evidence relating to
       the defense of duress-necessity by showing typical drug and gang related
       activity is to threaten individuals with harm-death to themselves and/or family
       members if money is not paid and as well to show the fear such threats can
       have on a person thereby at times causing a rational person, especially a young
       teenager, to act in an irrational manner as in Nash’s case.

       9. A. Nash was denied his Sixth Amendment right to counsel and the
       effective assistance of counsel under the United States Constitution due to
       counsel’s failure to request that the trial court instruct the jury on the offense
       of voluntary manslaughter.

       B. Nash was denied his Sixth Amendment right to counsel under the United
       States Constitution due to counsel’s failure to raise as an issue the trial court’s
       failure to instruct the jury on the offense of voluntary manslaughter.

       10. Nash was denied his Sixth Amendment right to counsel and the effective
       assistance of counsel under the United States Constitution due to counsel’s
       failure to raise as an issue on motion for new trial and direct appeal the
       prosecution’s suppression of evidence in the form of the video tape of the
       armed robbery by Nash at the Southland Market which occurred minutes
       before the robbery at the Okie Dokie Store.

In addition to the ineffective assistance of counsel claims, the Petitioner also asserted that his
Fourteenth Amendment right to due process was violated because prosecutors suppressed



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information concerning the disciplinary history of Detective Freeman, knowingly introduced
false and misleading evidence, and suppressed exculpatory evidence.

       On September 15, 2010, the post-conviction court filed an order summarily dismissing
the Petitioner’s petition for post-conviction relief, which stated, in part, as follows:

                Upon preliminary consideration of the petition pursuant to Tenn. Code
       Ann. § 40[-]30[-]106, the [c]ourt finds that, though it is timely and complete,
       it does not state a colourable claim. The claim of the inadmissibility of the
       [P]etitioner’s statement, on which all of the other claims in the petition
       apparently depend in whole or part, has been previously determined. Even the
       issue of prejudice from the omission of the transcript of the second suppression
       hearing from the record on appeal, on proof of which the claim of ineffective
       assistance of counsel depends in part, has been previously determined.

The Petitioner now appeals.

                                            Analysis
        The Petitioner contends that the issues he presented in his petition for post-conviction
relief represented colorable claims and that the post-conviction court erred when it summarily
dismissed his petition. The State agrees that the post-conviction court incorrectly dismissed
the petition.

       The issue before us is a question of law and, therefore, this Court reviews the post-
conviction court’s dismissal of the petition de novo. Arnold v. State, 143 S.W.3d 784, 786
(Tenn. 2004). Post-conviction relief “shall be granted when the conviction or sentence is
void or voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. In
pertinent part, the Post-Conviction Procedure Act states as follows:

               (f) Upon receipt of a petition in proper form, or upon receipt of an
       amended petition, the court shall examine the allegations of fact in the petition.
       If the facts alleged, taken as true, fail to show that the petitioner is entitled to
       relief or fail to show that the claims for relief have not been waived or
       previously determined, the petition shall be dismissed. The order of dismissal
       shall set forth the court’s conclusions of law.

              ....




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               (h) A ground for relief is previously determined if a court of competent
       jurisdiction has ruled on the merits after a full and fair hearing. A full and fair
       hearing has occurred where the petitioner is afforded the opportunity to call
       witnesses and otherwise present evidence, regardless of whether the petitioner
       actually introduced any evidence.

Tenn. Code Ann. § 40-30-106(f), (h); see also Tenn. S. Ct. R. 28 § 2(H) (“A colorable claim
is a claim, in a petition for post-conviction relief, that, if taken as true, in the light most
favorable to petitioner, would entitle petitioner to relief under the Post-Conviction Procedure
Act.”).

        When the claims in the Petitioner’s post-conviction relief petition are taken as true,
in the light most favorable to the Petitioner, we conclude that the petition states a claim that
would entitle the Petitioner to relief under the Post-Conviction Procedure Act. Moreover,
we have reviewed the petition for relief, as well as this Court’s opinion in the Petitioner’s
direct appeal, and we cannot conclude that any of the issues the Petitioner presents regarding
the ineffective assistance of counsel, nor the denial of his due process rights, have been
previously determined. Therefore, we remand this case to the post-conviction court for the
appointment of counsel and for an evidentiary hearing.

                                          Conclusion
        Based on the foregoing authorities and reasoning, we reverse the summary dismissal
of the Petitioner’s post-conviction relief petition and remand for the appointment of counsel
and for an evidentiary hearing.




                                                     _________________________________
                                                     DAVID H. WELLES, JUDGE




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