                                                                                                09/06/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              Assigned on Briefs July 9, 2019

                   JEFFERY YATES v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                        No. 02-00754     Chris Craft, Judge


                              No. W2018-02246-CCA-R3-PC


In this procedurally complex and litigious case, the Petitioner, Jeffery Yates, was
convicted in three sets of convictions, 1993, 1994, and 2003, of: (1993) especially
aggravated kidnapping, attempted aggravated robbery, and aggravated kidnapping,
receiving an effective eighteen-year sentence; (1994) five counts of aggravated assault,
receiving a ten-year concurrent sentence; and (2003) aggravated robbery, receiving a
thirty-year Range II sentence. The Petitioner has repeatedly and unsuccessfully
challenged his convictions and sentences. In this, his latest challenge, the Petitioner filed
a petition for post-conviction relief challenging his 2003 convictions. He contended that
he had received the ineffective assistance of counsel and that the trial court had
improperly amended his judgment of conviction. The post-conviction court summarily
dismissed the petition, concluding that the grounds for relief had clearly been waived
because they had not been raised in the Petitioner’s prior petition for post-conviction
relief. In the alternative, the trial court stated that, if it considered the petition as a motion
to re-open the prior post-conviction proceeding, the Petitioner had failed to meet his
burden of proof. We affirm the post-conviction court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR., J. joined. J. ROSS DYER, J., not participating.

Jeffry Yates, Clifton, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; and Amy P. Weirich, District Attorney General, for the appellee, State
of Tennessee.

                                          OPINION
                                  I. Facts and Background
The following is a summary by this court of the history of the Petitioner’s cases:

       Twenty-five years ago, [the] Petitioner was convicted of especially
aggravated kidnapping, attempted aggravated robbery, and aggravated
kidnapping (the 1993 convictions) and received an effective eighteen-year
sentence. See Jeffrey D. Yates v. State, No. 02C019608-CR-00276, 1997
WL 399311, at *1 (Tenn. Crim. App. [at Jackson] July 16, 1997), perm.
app. denied (Tenn. Feb. 23, 1998). He unsuccessfully sought post-
conviction relief on the basis of ineffective assistance of counsel. Id.
About one year later, he pled guilty to five counts of aggravated assault and
two counts of possession of cocaine with intent to sell (the 1994
convictions), receiving an effective ten-year sentence which was ordered to
be served concurrently with the sentences for the 1993 convictions. See
Jeffery Yates v. State, No. W2007-02868-CCA-R3-HC, 2008 WL 3983111,
at *1 (Tenn. Crim. App. [at Jackson] Aug. 27, 2008), perm. app. denied
(Tenn. Jan. 20, 2009).

       In 2003, [the Petitioner] was convicted by a jury of aggravated
robbery and sentenced as a Range III, career offender to thirty years in the
Department of Correction. State v. Jeffrey Yates, No. W2003-02422-CCA-
MR3-CD, 2005 WL 1707974, at *1 (Tenn. Crim. App. [at Jackson] July 21,
2005), perm. app. denied (Tenn. Dec. 19, 2005). [The] Petitioner did not
challenge his sentence on direct appeal. Id. [The] Petitioner sought post-
conviction relief, but his attempt to prove that both trial and appellate
counsel were ineffective was not successful. Jeffrey Yates v. State, No.
W2008-02498-CCA-R3-PC, 2009 WL 2985949, at *12 (Tenn. Crim. App.
[at Jackson] Sept. 18, 2009), perm. app. denied (Tenn. Feb. 22, 2010).

       Dissatisfied with his effective eighteen-year sentence from the 1993
and 1994 convictions, Petitioner attempted to attack the judgments via the
writ of habeas corpus. In 2006, he argued that his eighteen-year sentence
for the 1993 convictions was illegal because it was required to be served
consecutively to the ten-year sentence for his 1994 convictions because he
was “on bail for the five aggravated assaults and for one count of
possessing cocaine when he committed the especially aggravated
kidnapping, aggravated kidnapping, and attempted aggravated robbery[.]”
Jeffery Yates v. State, No. W2006-00969-CCA-R3-HC, 2007 WL 936117,
at *1 (Tenn. Crim. App. [at Jackson] Mar. 29, 2007), perm. app. denied
(Tenn. Aug. 13, 2007). This Court denied relief because the judgment
forms were facially valid and [the] Petitioner failed to include any
documents to support his argument. Id. Then, in 2007, [the] Petitioner

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challenged the validity of his 1994 convictions on the same basis. Jeffery
Yates, 2008 WL 3983111, at *1. He was again unsuccessful.

        In 2009, [the] Petitioner again sought habeas corpus relief on both
his 1993 and 1994 convictions. Jeffery Yates v. State, No. W2009-01136-
CCA-R3-HC, 2010 WL 4540063, at *1 (Tenn. Crim. App. [at Jackson]
Sept. 24, 2010), perm. app. denied (Tenn. Dec. 22, 2010). In this third
attempt at habeas corpus relief, [the] Petitioner advanced the same
argument with regard to the manner of service of his sentence, this time
citing Rule 32 of the Tennessee Rules of Criminal Procedure as support for
his argument. The trial court denied relief on the basis that [the] Petitioner
“was no longer restrained of his liberty.” Id. at *2. This Court affirmed.
Id. at *3.

       In another attempt at habeas corpus relief, [the] Petitioner argued
that his 2003 conviction for aggravated robbery was void because it failed
to specify whether the thirty-year sentence was to be served consecutively
to or concurrently with the 1993 sentence. Jeffery Yates v. Randy Lee,
Warden, No. E2017-00201-CCA-R3-HC, 2017 WL 2829821, at *1 (Tenn.
Crim. App. [at Jackson] June 30, 2017), perm. app. denied (Tenn. Sept. 20,
2017). The trial court denied relief and this Court affirmed, finding that the
absence of the information from the judgment form did not render the
judgment void because Tennessee Rule of Criminal Procedure 32(c)(3)(A)
required consecutive service of a sentence imposed for a felony committed
while on parole regardless of whether the judgment specified the manner of
service of the sentence.

       [The] Petitioner tried a different approach by filing a motion to
correct an illegal sentence under Tennessee Rule of Criminal Procedure
36.1. Jeffery Yates v. State, No. W2014-00325-CCA-R3-CO, 2015 WL
128097, at *1 (Tenn. Crim. App. [at Jackson] Jan. 8, 2015), perm. app.
denied (Tenn. May 15, 2015). [The] Petitioner argued:

               [H]is 1993 and 1994 convictions were void because
       their sentences were not ordered to be served consecutively;
       therefore, his 2003 sentence for aggravated robbery was
       illegal because the sentencing court had relied on the 1993
       and 1994 convictions in classifying [the Petitioner] as a career
       offender. [The Petitioner] also argued that his 2003 sentence
       was illegal because the sentencing court, in classifying him as
       a career offender, relied on a void judgment of conviction that

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             “had been withdrawn through a prior [p]ost-[c]onviction
             proceeding.” [The Petitioner] further argued that his 2003
             sentence was illegal because he was denied his right to
             “allocution” at the sentencing hearing.

      Id. at *2. This Court affirmed the trial court’s summary denial of the
      motion under Rule 36.1 because Petitioner failed to state a colorable claim.
      Id. at *3.

             [The] Petitioner filed another motion under Rule 36.1, arguing that
      his sentences for the 1993 and 1994 convictions were illegal because he
      received concurrent sentences when consecutive sentences were statutorily
      required. State v. Jeffery Yates, No. W2015-01075-CCA-R3-CD, 2016 WL
      721035, at *1 (Tenn. Crim. App. [at Jackson] Feb. 23, 2016), perm. app.
      denied (Tenn. June 24, 2016). This Court denied relief on the basis that the
      underlying sentences about which he was complaining were expired. Id. at
      *2.

              All of these prior attempts to gain relief from his convictions and
      sentences bring us to the present appeal. In October of 2017, [the]
      Petitioner filed a motion for correction of a clerical error pursuant to
      Tennessee Rule of Criminal Procedure 36. In response to the motion, the
      trial court entered an order finding that [the] Petitioner “complains that his
      judgment of conviction and sentence entered on the above-styled
      indictment on June 19, 2003, does not on its face [state] that his 30[-]year
      sentence for aggravated robbery runs consecutively with the other sentences
      for which he was on parole at the time of his offense.” The trial court
      ordered that “the attached new corrected judgment be sent to the
      Department of Correction adding this information at [the Petitioner’s]
      request.” On the corrected judgment, the trial court hand wrote that [the]
      Petitioner’s sentence was consecutive to “all other sentences [for] which he
      was on parole on 8/26/01.” Petitioner appealed.

State v. Jeffery Yates, No. W2018-00284-CCA-R3-CD, 2019 WL 192397, at *1-3 (Tenn.
Crim. App., at Jackson, Jan. 11, 2019), perm. app. denied (Tenn. Apr. 15, 2019).

       In our January 2019 decision, we noted that the Petitioner sought correction of a
clerical error in his judgment from a 2003 conviction for aggravated robbery, alleging
that the trial court was without jurisdiction to amend the judgment, that the trial court
failed to find the original judgment contained a clerical error, and that the amended
judgment was incomplete. Id. at *1. We determined that the amended judgment form

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was incomplete because it did not specify that the Petitioner was a career offender, and
we remanded the matter to the trial court for correction of the judgment form but
affirmed the judgment in all other respects. Id.

        On November 28, 2018, while the Petitioner’s previous Rule 36.1 motion was
pending, the Petitioner filed another petition for post-conviction relief. In it, he alleged
that his 2003 trial counsel was ineffective and also that the trial court lacked jurisdiction
to enter the amended judgment. On December 5, 2018, the post-conviction court
summarily dismissed the petition finding:

       [The Petitioner] has filed other post-conviction matters. In his last petition
       before this one, a “Petition for Correction of Clerical Mistakes” he asked
       that the judgment in the instant case be corrected because it did not show
       [on] its face that his conviction was to run consecutively to his other
       convictions on which he w[a]s on parole when the instant offense was
       committed, and [the trial court] entered a corrected judgment showing the
       consecutive nature of his sentences. He then filed the instant petition
       alleging ineffective assistance of counsel, alleging that it was filed timely
       because it was filed within one year of the entry of the corrected judgment,
       pursuant to King v. State, M2017-00058-CCA-R3-PC (Tenn. Crim. App.
       2017). Whether or not it was timely filed, the grounds in the petition have
       clearly been waived as not having been raised in his prior petition for post-
       conviction relief, and should be dismissed.

              If treated as a petition to reopen his post-conviction petition, Tenn.
       Code Ann. § 40-30-117(a)(1) provides [the requirements for such a
       petition]. As the grounds in the petition do not satisfy any of the criteria set
       out in Tenn. Code Ann. § 40-30-117 as grounds to reopen, and have also
       been previously waived as not having been raised in any previous petitions,
       this additional petition should also be summarily dismissed.

       It is from this judgment that the Petitioner now appeals.

                                        II. Analysis

       On appeal, the Petitioner contends that the trial court erred when it treated his
petition as a motion to reopen his petition for post-conviction relief. He further contends
that the trial court erred when it summarily dismissed his petition. The State first
concedes that the Petitioner correctly claims that he had a right to file a post-conviction
petition following the 2018 amendment of his conviction; thus this case is properly
before this court pursuant to Tennessee Rule of Appellate Procedure 3. The State next

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contends that the post-conviction court properly dismissed the Petitioner’s petition
because the claims contained herein are all either waived or previously determined. We
agree with the State.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.
T.C.A. § 40-30-110(f) (2014). The post-conviction court’s findings of fact are conclusive
on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450,
456-57 (Tenn. 2001). Upon review, this Court will not re-weigh or re-evaluate the
evidence below; all questions concerning the credibility of witnesses, the weight and
value to be given their testimony and the factual issues raised by the evidence are to be
resolved by the trial judge, not the appellate courts. Momon v. State, 18 S.W.3d 152, 156
(Tenn. 1999); Henley v. State, 960 S.W.2d 572, 578-79 (Tenn. 1997). A post-conviction
court’s conclusions of law, however, are subject to a purely de novo review by this Court,
with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

              First, the [petitioner] must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the [petitioner] by
      the Sixth Amendment. Second, the [petitioner] must show that the
      deficient performance prejudiced the defense. This requires showing that
      counsel’s errors were so serious as to deprive the [petitioner] of a fair trial,
      a trial whose result is reliable. Unless a [petitioner] makes both showings,
      it cannot be said that the conviction or death sentence resulted from a
      breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Melson, 772 S.W.2d 417,
419 (Tenn. 1989).

       Tennessee Code Annotated section 40-30-102(a) provides that a petition for post-
conviction relief must be filed within one year of the date on which the judgment became
final or consideration of the petition will be time-barred. The parties agree that the
Petitioner was entitled to file a new post-conviction petition based on the 2018 amended

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judgments. Steven Padgett King v. State, No. M2017-00058-CCA-R3-PC, 2017 WL
3741408, at *1-2 (Tenn. Crim. App., at Nashville, Aug. 30, 2017), no Tenn. R. App. P. 11
application filed. We will therefore consider whether the post-conviction court erred
when it summarily dismissed the petition, concluding that the Petitioner had waived the
issues he had presented for review.

       Even if the petition had been timely filed, the petition needed to assert a colorable
claim for post-conviction relief. Tenn. Sup. Ct. R. 28 § 2(B)(2). A “colorable claim” is
defined as “a claim . . . that, if taken as true, in the light most favorable to petitioner,
would entitle petitioner to relief under the Post-Conviction Procedure Act.” Tenn. Sup.
Ct. R. 28 § 2(h). If the facts alleged in the petition, taken as true, fail to state a colorable
claim, then summary dismissal is appropriate. Arnold v. State, 143 S.W.3d 784, 786
(Tenn. 2004). Summary dismissal is also appropriate where the petition fails to show that
“the claims for relief has not been waived or previously determined.” T.C.A. § 40-30-
106(f) (2016). We review the propriety of a post-conviction court’s summary dismissal
de novo. See, e.g., Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002) (citing Fields v.
State, 40 S.W.3d 450, 457 (Tenn.2001)). The Post-Conviction Procedure Act requires
that a petition for relief under the Act “contain a clear and specific statement of all
grounds upon which relief is sought, including full disclosure of the factual basis of those
grounds.” T.C.A. § 40-30-106(d).

         Regarding the Petitioner’s claims with respect to his trial counsel’s performance
for his 2003 convictions, we conclude that those claims were addressed by the court in
his previous petition and therefore were previously decided. See Yates, 2009 WL
2985949, at *1. Any claims not contained in his previous petition are waived.
Additionally, the Petitioner’s contention that the Shelby County Criminal Court lacked
jurisdiction to enter amended judgments in 2018 has also previously been decided. See
id., at *3. As such, we conclude that he is not entitled to relief.

                                       III. Conclusion

       After a thorough review of the record and the applicable law, we conclude the
post-conviction court properly summarily dismissed the Petitioner’s petition for post-
conviction relief. In accordance with the foregoing reasoning and authorities, we affirm
the judgment of the post-conviction court.


                                                     ________________________________
                                                      ROBERT W. WEDEMEYER, JUDGE




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