         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs February 1, 2005

                   EDWARD BEARD v. STATE OF TENNESSEE

                   Direct Appeal from the Circuit Court for Gibson County
                            No. 16308 Clayburn Peeples, Judge



                    No. W2004-00627-CCA-R3-PC - Filed March 23, 2005



This appeal arises from the post-conviction court’s dismissal of the Petitioner’s petition for post-
conviction relief. The Petitioner, Edward Beard, pled guilty to one count of rape, and the trial court
sentenced him to eight years in prison, to be served at 100%. The Petitioner filed a pro se petition
for post-conviction relief. The trial court summarily dismissed the Petitioner’s petition because the
Petitioner failed to submit any facts in support of his claims for relief. Finding no error in the
judgment of the post-conviction court, we affirm the dismissal of the Petitioner’s petition for post-
conviction relief.

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


ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and ALAN E. GLENN , JJ., joined.

Edward Beard, pro se

Paul G. Summers, Attorney General and Reporter; David E. Coenen, Assistant Attorney General;
Garry G. Brown, District Attorney General; and Gary Brown, Assistant District Attorney General,
for the Appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

        This appeal arises from the post-conviction court’s dismissal of the Petitioner’s petition for
post-conviction relief. The Gibson County Grand Jury indicted the Petitioner for two counts of rape
of a child. The Petitioner subsequently pled guilty to one count of the lesser-included charge of



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rape.1 The trial court sentenced the Petitioner to eight years in prison, to be served at 100%. The
Petitioner filed a pro se petition for post-conviction relief, which the post-conviction court
summarily dismissed.

        The Petitioner filed his petition for post-conviction relief on the standard form provided by
the State of Tennessee. This form contains a list of several specific claims for relief, which is
preceded by the following instructions:


       Specify every ground on which you claim that you are being held unlawfully, by
       placing a check mark on the appropriate line(s) below and providing the required
       information or by attaching separate pages.

       INCLUDE ALL FACTS WHICH SUPPORT THE GROUNDS YOU CLAIM.

Following the list of possible grounds for relief, the form further sets forth the following
information:

       THE LIST ABOVE DOES NOT INCLUDE A COMPLETE LIST OF ALL
       CONSTITUTIONAL VIOLATIONS. YOU MAY ADD ANY OTHERS YOU
       DEEM APPROPRIATE. ATTACH A SEPARATE SHEET OF PAPER LISTING
       EACH CONSTITUTIONAL VIOLATION THAT YOU CLAIM, LIST EACH AND
       EVERY FACT YOU FEEL SUPPORTS THIS GROUND. EXPLAIN IN DETAIL
       HOW YOU ARE PREJUDICED BY THE VIOLATION AND WHY YOU ARE
       ENTITLED TO RELIEF. BE SPECIFIC. . . .

On the petition form, the Petitioner placed check marks next to several of the various listed grounds
for relief. The Petitioner, however, did not list any facts in support of any of these grounds. The
post-conviction court entered an order dismissing the petition for post-conviction relief, stating:

       This cause came to be heard on the 1st day of March 2004, . . . upon the Petition for
       Post Conviction Relief filed on behalf of [the Petitioner], and the entire record in this
       cause, from all of which it satisfactorily appears to the Court that the said Petition for
       Post Conviction Relief fails to state any ground or claim upon which relief should be
       granted under the Post Conviction Procedures Act, and that said petition should be
       dismissed . . . .

                                                   II. Analysis

       The Petitioner appeals the post-conviction court’s dismissal of his petition for post-
conviction relief, contending that the court erred when it dismissed his petition without appointing


       1
           The second count of rape of a child was nolle prosqui.

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counsel and allowing counsel fifteen days to file an amended petition. Specifically, the Petitioner
asserts that he did not understand the procedures required in filing a petition for post-conviction
relief or the need to provide specific facts in support of his claims. The State counters that the
Petitioner has waived this claim by failing to cite to the appellate record in his brief to this Court and,
alternatively, that the Petitioner is not entitled to the relief he seeks.

        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. Tenn. Code Ann.
§ 40-30-103 (2003). The petitioner bears the burden of proving factual allegations in the petition
for post-conviction relief by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f). A
post-conviction court’s factual findings are subject to a de novo review by this Court; however, we
must accord these factual findings a presumption of correctness, which is overcome only when a
preponderance of the evidence is contrary to the post-conviction court’s factual findings. Fields v.
State, 40 S .W.3d 450, 456 (Tenn. 2001). A post-conviction court’s conclusions of law are subject
to a purely de novo review by this Court, with no presumption of correctness. Id. at 457.

                                               A. Waiver

        Rule 10(b) of the Tennessee Rules of the Court of Criminal Appeals states, “Issues which
are not supported by argument, citation to authorities, or appropriate references to the record will be
treated as waived in this Court.” Although the State is arguably correct that the Petitioner has
waived the issues he raises on appeal by failing to provide appropriate references to the record, the
Petitioner did, in fact, refer to the record once and acknowledge that this reference was insufficient.
In the interest of justice, we decline to rule in favor of the State on the waiver issue, and we will
address the Petitioner’s claim on the merits.

                               B. Failure to Assert Supporting Facts

        The Petitioner argues that the trial court should have appointed counsel for him and allowed
him to amend his petition for post-conviction relief. Notably, the Petitioner admits that “he only
checked the boxes listing the grounds for relief and submitted no facts, whatsoever in support of
those grounds.” The Petitioner argues, however, that he is entitled to relief because his failure to
assert a factual basis for his claims arose from his ignorance of the requirements of the Post
Conviction Procedures Act. Conversely, the State argues that the post-conviction petition form
states that specific facts are required and, therefore, the Petitioner can not blame his failure to
provide any facts on ignorance.

       The Post Conviction Procedures Act provides the specific requirements for all petitions for
post-conviction relief. See Tenn. Code Ann. § 40-30-101, et. seq. (2003). Tennessee Code
Annotated section 40-30-106(d) (2003) states:

        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


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        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.

Section 40-30-106(d) clearly explains that a petition failing to provide the factual basis of a claim
shall be dismissed. Section 40-30-106(d) also states that the trial court may grant the petitioner
fifteen days to amend his petition to comply with the requirements of the Post Conviction Procedures
Act. The Act, however, does not require the court to provide this opportunity. In Powell v. State,
this Court explained, “[a]lthough the statute grants the trial judge the discretion to allow a pro se
petitioner fifteen days within which to amend his petition to comply with the code section, the statute
does not mandate that the judge do so.” Powell v. State, 8 S.W.3d 631, 633 (Tenn. Crim. App.
1998). The discretion of the post-conviction court, however, is not limitless. See William Patrick
Robinson v. State, No. W2003-01393-CCA-R3-PC, 2004 WL 875267, at *3 (Tenn. Crim. App. at
Jackson, April 22, 2004) no perm. app. filed. In Robinson, we reversed the post-conviction court’s
dismissal of the petitioner’s petition for post-conviction relief, finding that the petitioner had asserted
facts in support of his claims for relief. This Court stated:

        [W]e conclude that the Petitioner asserted specific facts to support his two colorable
        claims . . . . The Petitioner specifically alleges that the trial court and his trial counsel
        failed to inform him of: (1) his right to a jury trial; (2) his right to confront witnesses
        testifying against him; and (3) his right against self-incrimination. The Petitioner
        also alleged that he was “persuaded to plead guilty by promises which were not kept”
        and “by threats [made by] the judge, lawyer, police, and prosecuting attorney.”

Id.; see Donald Mitchell Green v. State, No. E2000-01941-CCA-R3-PC, 2001 WL 872791, at *3
(Tenn. Crim. App., at Knoxville, Aug. 2, 2001) no perm. app. filed (holding “While inartfully drawn,
the petition alleges that trial counsel induced the petitioner into pleading guilty because he was
assured that he would receive a 20-year sentence; that trial counsel failed to file a motion to
withdraw his guilty plea; and that he was pressured into pleading guilty because of trial counsel’s
errors and ill preparation . . . [the petitioner] is entitled to the appointment of counsel and an
evidentiary hearing on his claims. . . .”).

        Conversely, in the case under submission, the Petitioner wholly and completely failed to
assert any facts in support of his claims for relief. The Petitioner provided nothing more than “bare
allegation[s] that a constitutional right has been violated and mere conclusions of law,” which are
not “sufficient to warrant any further proceedings.” Burnett v. State, 92 S.W.3d 403, 406 (Tenn.
2002) (citing Tenn. Code. Ann. § 40-30-206(d)). Moreover, the Petitioner filed his petition for post-
conviction relief on the standard form. This form specifically instructs that the petition requires the
Petitioner to “include all facts which support the grounds,” and the form reiterates this requirement
in a separate location stating, “attach a separate sheet of paper listing each constitutional violation


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[claimed], [and] list each and every fact that . . . supports this ground.” Furthermore, both statements
are printed conspicuously in large capital letters. Thus, we conclude that the post-conviction court
did not err when it dismissed the Petitioner’s post-conviction petition, and the Petitioner is not
entitled to relief based on his claims of ignorance. This issue is without merit.

                                           III. Conclusion

       In accordance with the foregoing reasoning and authorities, we affirm the judgment of post-
conviction court.


                                                        ___________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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