                                                                                            12/11/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs August 28, 2018

               BRENT ALLEN BLYE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sullivan County
                       No. C67463 William K. Rogers, Judge
                      ___________________________________

                             No. E2017-02176-CCA-R3-PC
                        ___________________________________

In 2006, the Petitioner, Brent Allen Blye, was convicted by a jury of various drug
offenses, and later entered guilty pleas to several other unrelated offenses, for which he
received an effective sentence of thirty years’ confinement. State v. Brent Allen Blye,
No. E2008-00976-CCA-R3-CD, 2011 WL 529515, at *1 (Tenn. Crim. App. Feb. 14,
2011), perm. app. denied (Tenn. May 25, 2011). On direct appeal, this court determined
that the issues raised pertaining to his jury convictions were waived based on trial
counsel’s failure to timely file a motion for new trial and reviewed those convictions for
sufficiency of the evidence only. His remaining issues, pertaining to his guilty pleas,
were reviewed and affirmed. The Petitioner later filed a post-conviction petition seeking
relief based on trial counsel’s failure to timely file a motion for new trial and ineffective
assistance of trial counsel based on failure to assert a certain defense theory. After
conducting a full evidentiary hearing as to both issues, the post-conviction court denied
relief, a decision which was later reversed, in part, by this court. Brent A. Blye v. State,
No. E2012-02626-CCA-R3-PC, 2013 WL 3973468 (Tenn. Crim. App. Aug. 5, 2013), no
perm. app. filed. In that case, this court remanded to the post-conviction court on the
issue of the delayed appeal, id. at *12; however, we affirmed the court’s denial of the
Petitioner’s claim of ineffective assistance of trial counsel based on his failure to pursue a
certain defense theory. The Petitioner was granted a delayed appeal on remand and filed
a timely motion for new trial, which was denied by the trial court. Upon review of the
delayed appeal, we affirmed the Petitioner’s felony drug convictions, but reversed and
remanded his misdemeanor drug convictions for a new trial. State v. Brent Allen Blye,
No. E2014-00220-CCA-R3-CD, 2015 WL 4575279 (Tenn. Crim. App. July 30, 2015),
perm. app. denied (Tenn. Jan. 14, 2016). The Petitioner subsequently filed a “second”
petition for post-conviction relief, the subject of this appeal, alleging ineffective
assistance of trial counsel, which was summarily dismissed by the post-conviction court.
After an exhaustive review of the record and the applicable law, we affirm the judgment
of the post-conviction court.
 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and TIMOTHY L. EASTER, JJ., joined.

Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Petitioner, Brent Allen Blye.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Barry P. Staubus, District Attorney General; and William B. Harper,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        As outlined above, this case has an extensive procedural history, a review of
which is necessary for the resolution of the issue presented. In 2011, the Petitioner filed
his first pro se petition for post-conviction relief raising six grounds for relief including
that the trial court erred in allowing inadmissible hearsay, the trial court erred in not
properly awarding pre-trial jail credit, and ineffective assistance of trial counsel based on
the failure to (1) file a motion for new trial; (2) request a continuance to subpoena the co-
defendant’s civil attorney, a purportedly crucial witness; (3) object during a detective’s
testimony concerning drugs seized from Ms. Collier’s (co-defendant) hotel room; and (4)
file a motion to suppress evidence during an unconstitutional search and seizure. He was
subsequently appointed counsel, and an amended petition for post-conviction relief was
filed incorporating the original pro se petition.1

        On November 5, 2012, the original post-conviction court held an evidentiary
hearing, at which trial counsel (for the jury convictions) and the Petitioner testified.2 By
way of introductory remarks, original post-conviction counsel advised the court that “the
real issue” was whether the Petitioner was entitled to a delayed motion for new trial.
Original post-conviction counsel further advised that he was proceeding on the issue of
ineffective assistance of trial counsel in failing to secure a material witness. During trial
counsel’s testimony, the State conceded that trial counsel filed an untimely motion for
new trial, and trial counsel’s testimony consisted primarily of his explanation in failing to
do so. Trial counsel additionally testified that he did not believe a defense theory of

        1
          We are compelled to note that the Petitioner has been appointed multiple lawyers throughout
this case. Significantly, the first lawyer appointed for purposes of post-conviction relief withdrew
because the Petitioner “insist[ed] on inclusion of an issue in his Post-Conviction Appeal Petition that his
counsel believes to be not proper under the Tenn. Code Ann. § 40-30-103.”
        2
          We obtained, reviewed, and take judicial notice of the full record in this case including the
original post-conviction hearing and order denying the Petitioner relief.
                                                   -2-
simple possession was plausible given the amount of drugs involved, that his defense was
that the drugs belonged to the co-defendant, and that when he questioned her outside the
jury’s presence she invoked the Fifth Amendment. The co-defendant had apparently
received a substantial civil settlement, for which her attorney could attest, and trial
counsel declined to call him as a witness. Finally, trial counsel testified regarding what
he advised the Petitioner as to the proper allocation of pre-trial jail credit.

       The Petitioner’s testimony was limited to his intent to file a motion for new trial,
discussions with trial counsel concerning plausible defense theories, his directive to trial
counsel to subpoena co-defendant’s civil attorney concerning her recent settlement
monies, and his understanding of his pre-trial jail credit. Given the absence of proof on
the issue, the original post-conviction court inquired, “You going to abandon your issue
on search and seizure?” To which original post-conviction counsel replied, “Yes.”

        The original post-conviction court denied relief by written order as to the
Petitioner’s request for a delayed appeal and did not stay its ruling pertaining to the
Petitioner’s ineffective assistance of counsel claim. The original post-conviction court
determined, in pertinent part, that the Petitioner withdrew his issues pertaining to trial
counsel’s failure to file a motion to suppress, that the Petitioner received effective
counsel at trial because his co-defendant invoked the Fifth Amendment as was her right,
subpoenaing co-defendant’s civil attorney would not have entitled Petitioner relief, and
that trial counsel properly discussed trial strategy with the Petitioner.

        The Petitioner appealed the original post-conviction court’s denial of relief, and
this court reversed the original post-conviction court’s order in part and remanded for
specific findings of fact relative to the delayed appeal. Brent A. Blye, 2013 WL
3973468, at *1. However, citing Rule 28, Section 9(D)(2)(a) of the Rules of the
Tennessee Supreme Court, this court also reviewed the Petitioner’s ineffective assistance
of counsel claim and noted that we were required to “‘resolve this issue along with any
other issues raised in the post-conviction appeal;’ [and] should this court ‘grant a delayed
appeal, the post-conviction appeal shall not be stayed.’” Id. at *12, n.1. Significantly,
this court cautioned “that in proceeding this way, if a delayed appeal was granted by the
post-conviction court, the Petitioner will not be allowed to amend or refile a new post-
conviction petition regarding any issues which might arise during that delayed appeal.”
Id. (emphasis added). We then affirmed the post-conviction court’s determination that
trial counsel was not ineffective based on his failure to pursue a defense theory of simple
possession. Id.

       The Petitioner was eventually permitted to file a proper motion for new trial,
which enabled him to pursue first and second tier review of whether the trial court (1)
erred in restricting his cross-examination of a witness; (2) improperly admitted testimony
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regarding the value of drugs found in the hotel room; and (3) improperly instructed the
jury on lesser included offenses. See Brent Allen Blye, 2015 WL 4575279. We affirmed
the Petitioner’s conviction for possession of twenty-six grams or more of cocaine with
the intent to sell or deliver, reversed the Petitioner’s convictions for possession of
dihydrocodeinone and marijuana due to improper jury instructions, and remanded those
cases for a new trial. Id. at *1, *10.

        On December 7, 2016, the Petitioner filed his “second” petition for post-
conviction relief, the subject of this appeal, alleging his convictions were based on an
illegal arrest and that trial counsel was ineffective for (1) failure to file a motion to
suppress evidence from an illegal search of his jacket; (2) failure to challenge the
Petitioner’s arrest warrant; and (3) failure of original post-conviction counsel to challenge
Judge Robert Montgomery, Jr.’s presence on this court’s panel on delayed appeal. On
January 20, 2017, the post-conviction court summarily dismissed the petition without a
hearing or appointment of counsel. On February 8, 2017, the post-conviction court set
aside its order as to the Petitioner’s claim that evidence should have been suppressed due
to the illegal search of his jacket and allowed appointed counsel to file an amended
petition for post-conviction relief. On July 14, 2017, appointed counsel filed an amended
petition, alleging in more detail that trial counsel was ineffective in failing to file a
motion to suppress the evidence found during an illegal search of the Petitioner’s person
and hotel room. The State responded that the Petitioner was barred from filing a second
or amended petition for post-conviction relief pursuant to this court’s decision in his first
post-conviction appeal, Brent Allen Blye, 2013 WL 3973468, at *12, n.1. The State
further asserted that the Petitioner waived any ineffective assistance claims by failing to
include them in his first petition for post-conviction relief.

        On September 25, 2017, the post-conviction court summarily dismissed the
Defendant’s second petition for post-conviction relief, finding that “[i]t is well-
established that the law favors only one post-conviction petition” and that “the issue that
he has raised in the current petition was initially raised and addressed in his first direct
appeal.” See Brent Allen Blye, 2011 WL 529515, at *1. The court determined that the
“Petitioner’s failure to pursue the issue at his later direct appeal (2015) constitutes a
waiver of the issue” and “Tennessee Code Annotated [section] 40-30-102 clearly states
that no more than one (1) petition may be filed ‘attacking a single judgment.’” It is from
this judgment that the Petitioner now appeals.

                                       ANALYSIS

      On appeal, the Petitioner argues that the post-conviction court erred in summarily
dismissing his petition for post-conviction relief and that the court “improperly denied
him the opportunity to litigate [his] claims” of ineffective assistance of counsel.
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Alternatively, the Petitioner asserts that the post-conviction court should have construed
his second petition as “a petition to re-open his initial post-conviction petition” in
accordance with Tennessee Code Annotated section 40-30-117(a)(4). In response, the
State contends that the post-conviction court properly dismissed the instant petition
because the Petitioner already filed one petition for post-conviction relief, his issues have
already been litigated, and he “present[s] no claims of newly-recognized constitutional
rights, new scientific evidence, or invalidated prior conviction.” Moreover, the State
asserts that this court limited the Petitioner’s claims by concluding that “if a delayed
appeal is granted by the post-conviction court, the [P]etitioner will not be allowed to
amend or refile a new post-conviction petition regarding any issues which might arise
during that delayed appeal.” Brent Allen Blye, 2013 WL 3973468, at *12, n.1. For the
reasons that follow, we conclude that summary dismissal of the petition was proper.

       At the root of the Petitioner’s grievance in this appeal is the original post-
conviction court’s failure to stay the portion of the Petitioner’s first petition for post-
conviction relief claiming ineffective assistance of counsel unrelated to the delayed
appeal. We acknowledge, as argued by the State, that Rule 28 originally gave trial courts
the discretion to bifurcate post-conviction proceedings in which dual relief in the form of
a delayed appeal and a new trial based on ineffective assistance of counsel is requested in
the same petition. However, in 2009, two years before the Petitioner filed his first
petition for post-conviction relief, Section 8(D)(3) of Rule 28 was amended to provide as
follows:

              In the event the petitioner alleges [he] was unconstitutionally
       deprived of an appeal and was also entitled to relief on other grounds, the
       court shall bifurcate the proceedings and determine first whether petitioner
       was denied an appeal, while holding the other claims in abeyance. Those
       claims shall be considered after the outcome of the delayed appeal, if
       allowed, or after the appeal of the claim, if denied.

Tenn. Sup. Ct. R. 28, § 8(D)(3) (emphasis added). This court has explained that “[t]he
rule contemplates that the post-conviction court will hear proof on all post-conviction
issues raised by the petition, although the trial judge is required to hold in abeyance its
rulings on all issues other than the delayed appeal.” State v. Howard Lee Coleman, No.
W2006-02601-CCA-R3-PC, 2007 WL 1651882, at *6 (Tenn. Crim. App. June 7, 2007).
By holding the remainder of a petitioner’s post-conviction claims in abeyance, “the
petitioner may amend the original petition to challenge any ‘new issues cognizable in a
post-conviction proceeding result [ing] from the handling of the delayed appeal.’” Id.
(quoting Tenn. Sup. Ct. R. 28, § 9(D)(3)(a)). In the instant case, the original post-
conviction court did not comply with the dictates of Supreme Court Rule 28.

                                            -5-
       Upon receipt of the Petitioner’s first petition for post-conviction relief, the original
post-conviction court should have first determined whether the Petitioner was entitled to
a delayed appeal. Further, the original post-conviction court should have held its ruling
on the Petitioner’s other ineffective assistance of counsel issues in abeyance. In failing to
bifurcate the proceedings as required by Rule 28, the original post-conviction court erred.
The original post-conviction court’s error was then compounded on appeal to this court
because we were bound by Section 9(D)(2)(a) of Rule 28, which has no stay provision, to
consider and resolve the denial of the delayed appeal and the Petitioner’s ineffective
assistance of counsel claim.

       We must now determine the effect, if any, of the original post-conviction court’s
failure to comply with the procedures of Rule 28. Rule 28 contemplates that the post-
conviction court will hear proof on all post-conviction issues raised by the petition,
although the trial judge is required to hold in abeyance its rulings on all issues other than
the delayed appeal. Howard Lee Coleman, 2007 WL 1651882, at *6; Tenn. Sup. Ct. R.
28, § 9(D)(1)(b). The rule further provides that following the disposition of the direct
appeal, the petitioner may amend the original petition to challenge any “new issues
cognizable in a post-conviction proceeding result[ing] from the handling of the delayed
appeal.” Id. (citing Tenn. Sup. Ct. R. 28, § 9(D)(3)(a); see also State v. Evans, 108
S.W.3d 231 (Tenn. 2003)). This rule has the practical effect of allowing a petitioner to
challenge the effectiveness of appellate counsel on direct appeal. Id.

        With the above law in mind, we conclude that the post-conviction court properly
denied relief. After the grant of the delayed appeal, the Petitioner was appointed counsel,
filed a proper motion for new trial, and received first and second tier appellate review.
Significantly, none of the issues raised in the Petitioner’s subsequent or “second” petition
for post-conviction relief challenge the effectiveness of appellate counsel for the delayed
appeal or raise any issue relative to the delayed appeal. While it is arguable that the
Petitioner’s claim that post-conviction counsel was ineffective in failing to challenge
Judge Robert Montgomery Jr.’s presence on the delayed appeal, that panel decision was
withdrawn, reissued showing Judge Montgomery not participating, and denied the
Petitioner relief. Moreover, in regard to the ineffective assistance of counsel claims
included in the “second” petition, a close review of the original post-conviction hearing
shows that the Petitioner abandoned his ineffective assistance of counsel claim relative to
search and seizure. The original post-conviction court inquired, “You going to abandon
your issue on search and seizure?” To which original post-conviction counsel replied,
“Yes.” The original post-conviction court’s order denying relief as to this issue explicitly
states that this issue was withdrawn. Accordingly, the Petitioner’s ineffective assistance
of counsel claim has been previously determined. Tenn. Code Ann. § 40-30-106(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
                                             -6-
petitioner is afforded the opportunity to call witnesses and otherwise present evidence,
regardless of whether the petitioner actually introduced any evidence.”); see also House
v. State, 911 S.W.2d 705, 712 (Tenn. 1995) (“Tennessee courts have long adhered to the
rule that a claim of ineffective assistance of counsel in a previous post-conviction
proceeding is not cognizable as a basis for relief in a subsequent post-conviction
action.”).

       To the extent that the Petitioner now attempts to base his ineffective assistance of
counsel claim on different grounds in his “second” petition, we further conclude that it is
waived. Tenn. Code Ann. § 40-30-106(g) (“A ground for relief is waived if the petitioner
personally or through an attorney failed to present it for determination in any proceeding
before a court of competent jurisdiction in which the ground could have been
presented[.]”). In our view, we fail to see why these grounds were not included in the
original petition for post-conviction relief. The stay provision of Rule 28, Section
8(D)(3) does not function as a delay tactic for a petitioner to raise new issues that could
have been previously included in his original petition for post-conviction relief. Rather,
the post-conviction court is directed to hold only its ruling on claims already included in
the petition in abeyance. Accordingly, the original post-conviction court’s procedural
error in prematurely issuing a ruling on the Petitioner’s ineffective assistance of trial
counsel claim did not impact the Petitioner’s case, and he is not entitled to relief.

                                    CONCLUSION

       Based on the foregoing reasoning and analysis, we affirm the judgment of the
post-conviction court.


                                             ____________________________________
                                             CAMILLE R. MCMULLEN, JUDGE




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