         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 8, 2005

                    TONEY L. CONN v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                           No. 2002-A-389    Steve Dozier, Judge



                     No. M2004-00220-CCA-R3-PC - Filed April 19, 2005



The petitioner appeals the summary dismissal of his petition for post-conviction relief, arguing that
he should have been appointed post-conviction counsel to assist him with his petition. We conclude
that the petitioner alleges a colorable claim for relief under the less stringent standards afforded to
a pro se petitioner and that the petitioner’s request for counsel should have been granted.
Accordingly, we reverse the dismissal of the petition and remand the case to the post-conviction
court for the appointment of counsel.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON and NORMA MCGEE
OGLE, JJ., joined.

Toney L. Conn, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General;
Victor S. Johnson, III., District Attorney General; and Pamela Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                                Facts

         According to the trial court’s order dismissing the petitioner’s petition for post-conviction
relief, the petitioner was convicted of possession with intent to sell twenty-six grams or more of a
schedule II controlled substance, felony possession of a weapon, possession of drug paraphernalia,
and possession of a controlled substance.1 The petitioner was sentenced on August 23, 2002, to an
effective sentence of fifteen years. The petitioner did not appeal his convictions or his sentence but
subsequently filed a pro se fill-in-the-blank “Petition for Relief from Conviction or Sentence” and
“Uniform Civil Affidavit of Indigency” on June 13, 2003. The petitioner alleged in his petition the
following grounds for relief: (1) the conviction was based on use of evidence gained pursuant to an
unconstitutional search and seizure; (2) the conviction was based upon action of a grand jury,
unconstitutionally selected and impaneled; (3) the denial of effective assistance of counsel; (4) and
illegal evidence was obtained through an unconstitutional search and seizure.

         On June 27, 2003, the post-conviction court, by order, found that the petitioner had failed to
state sufficient grounds for his constitutional claims and gave the petitioner fifteen days to amend
his petition. On July 15, 2003, the petitioner filed a motion for a time extension. In his motion, the
petitioner stressed that he did not understand the law and feared that his lack of understanding would
result in waiver of an issue. He also claimed that he did not have access to the trial record and that
he believed he should be appointed counsel pursuant to Tennessee Code Annotated section 40-30-
106(e). As a result, the petitioner asked for either an additional grant of time or appointment of
counsel.

        On July 27, 2003, by order, the post-conviction court dismissed the petitioner’s pro se post-
conviction petition. The post-conviction court found no sufficient grounds upon which to grant
relief. Apparently, on January 5, 2004, the post-conviction court again considered the petitioner’s
pro se petition and dismissed the petition as time barred by the one year statute of limitations.2
Thereafter, the petitioner filed an appeal to this Court, along with a motion for the appointment of
counsel.

                                                         Analysis

        On appeal, the petitioner argues that the post-conviction court improperly dismissed his pro
se petition for post-conviction relief without appointment of counsel to assist petitioner with his
petition. Specifically, the petitioner argues that the court knew that the petitioner was illiterate and
indigent, and therefore, should have appointed counsel when requested by the petitioner in his
motion for time extension. The State disagrees, arguing that the post-conviction court properly
dismissed the petition where the petitioner offered nothing to support his allegations and did not
comply with the requirements set forth in Tennessee Annotated section 40-30-106.

       Whether a post-conviction court properly dismissed a petition for failure to state a claim is
a question of law and is therefore reviewed de novo. See Burnett v. State, 92 S.W.3d 403, 406

         1
            Only the petitioner’s petition for post-conviction relief and the trial court’s orders are included in the record.
Therefore, we are assuming that the trial court’s order dismissing the petitioner’s post-conviction petition accurately
reflects the petitioner’s convictions. W e are also assuming that the date the petitioner was sentenced is accurately
reflected in the parties’ briefs.

         2
             The record only reflects the order dismissing the petition as time barred.

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(Tenn. 2002); Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001). Pursuant to the Post-Conviction
Procedure Act, a post-conviction petition must specify grounds for relief including disclosure of the
factual basis of those grounds. Tenn. Code Ann. § 40-30-106(d). Section 40-30-106 of the
Post-Conviction Procedure Act provides in pertinent part:

       (d) The petition must contain a clear and specific statement of all grounds upon
       which relief is sought, including full disclosure of the factual basis of those grounds.
       A bare allegation that a constitutional right has been violated and mere conclusions
       of law shall not be sufficient to warrant any further proceedings. Failure to state a
       factual basis for the grounds alleged shall result in immediate dismissal of the
       petition. If, however, the petition was filed pro se, the judge may enter an order
       stating that the petitioner must file an amended petition that complies with this
       section within fifteen (15) days or the petition will be dismissed.
       (e) If a petition amended in accordance with subsection (d) is incomplete, the court
       shall determine whether the petitioner is indigent and in need of counsel. The court
       may appoint counsel and enter a preliminary order if necessary to secure the filing of
       a complete petition. Counsel may file an amended petition within thirty (30) days of
       appointment.
       (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.

Tenn. Code Ann. § 40-30-106(d)-(f).

         In the instant case, we note that rather than attempting to amend his pro se petition, the
petitioner requested additional time or, in the alternative, appointment of counsel to assist him in
preparation of his amended petition. Looking to the Tennessee Supreme Court Rules, we note that
once a petition is filed, a judge shall review the petition and determine whether the petition states
a colorable claim. Tenn. Sup. Ct. R. 28, § 6(B)(2). 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.” Arnold v. State, 143 S.W.3d 784, 786
(Tenn. 2004) (quoting Tenn. Sup. Ct. R. 28, § 2(H)). “Post-conviction relief is available only 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.’” Id. (quoting Tenn. Code
Ann. § 40-30-203). In determining whether a colorable claim exists “pro se petitions are to be held
to less stringent standards than formal pleadings drafted by lawyers.” Allen v. State, 854 S.W.2d
873, 875 (Tenn. 1993) (citations omitted). “In the event a colorable claim is stated, the judge shall
enter a preliminary order which . . . appoints counsel, if petitioner is indigent.” Tenn. Sup. Ct. R.
28, § 6(B)(3)(a). “In the event the court concludes after the preliminary review that a colorable claim
is not asserted by the petition, the court shall enter an order dismissing the petition or an order
requiring that the petition be amended.” Id. at § 6(B)(4)(a). However, “[n]o pro se petition shall be


                                                  -3-
dismissed for failure to follow the prescribed form until the court has given petitioner a reasonable
opportunity to amend the petition with the assistance of counsel.” Id. at § 6(B)(4)(b) (emphasis
added); see also Allen, 854 S.W.2d at 875.

        Although the issue is close, we determine that, when viewed in the light most favorable to
petitioner, the petitioner’s claims presented in his original pro se petition, along with the petitioner’s
subsequent request for counsel, entitle him to the appointment of counsel to aid him in drafting a
more complete petition. Thus, when requested by the petitioner, the post-conviction court should
have appointed counsel to assist him. Consequently, the dismissal of the petitioner’s post-conviction
petition is reversed and the case is remanded for appointment of counsel.




                                                         ___________________________________
                                                         J.C. McLIN, JUDGE




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