         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                      Remanded by Supreme Court March 10, 2003

               CONNIE LEE ARNOLD v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Carter County
                           No. S15534     Robert E. Cupp, Judge



                                 No. E2003-00691-CCA-RM-PC
                                         April 15, 2003

The petitioner appealed from the criminal court’s dismissal of his petition for post-conviction relief.
This court agreed with the determination of the post-conviction court that the petition consisted only
of conclusory allegations without supporting facts, and, thus, affirmed the dismissal. See Connie
Lee Arnold v. State, No. E2001-02526-CCA-R3-PC, 2002 WL 31512404 (Tenn. Crim. App. Nov.
13, 2002). On March 10, 2003, our supreme court granted the petitioner’s application for permission
to appeal and remanded this case to us for reconsideration in light of Burnett v. State, 92 S.W.3d 403
(Tenn. 2002). Following our reconsideration, we affirm the post-conviction court’s dismissal of the
petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES, J., joined.
JOSEPH M. TIPTON, J., filed a dissenting opinion.

Connie Lee Arnold, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General;
Joe C. Crumley, Jr., District Attorney General; and Kenneth C. Baldwin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                               FACTS

        We first will review the facts upon which the petitioner’s convictions were based, as set out
in the opinion of this court on direct appeal:

               Earnest Hendrix, a cab driver, testified that on October 23, 1994, he
               was driving the defendant from Knoxville to Kingsport. He said that
               the defendant showed him a photograph depicting oral sex. Mr.
                Hendrix said that the defendant told him that the penis in the
                photograph was his and the girl was his daughter. The state
                introduced a Polaroid photograph into evidence as exhibit two, and
                Mr. Hendrix identified it as the one displayed by the defendant. He
                testified that the defendant offered to have his daughter perform oral
                sex on him in lieu of the cab fare. Mr. Hendrix said that upon their
                arrival in Kingsport, he called the police.

                        The victim testified that she was eleven years old in October
                1994. She said that before Halloween, she was attending to her sick
                grandmother when her father, the defendant, came to the door and
                motioned her out of the room. She said the defendant grabbed her
                arm and took her to his bedroom. She said he put his camera on the
                dresser, pushed her head down, stuck his penis in her mouth, and told
                her to go up and down on it. She said that he reached over and
                pushed the button on the camera. She identified exhibit two as the
                photograph the defendant made that day. The jury found the
                defendant guilty of both counts.

State v. Connie L. Arnold, No. 03C01-9902-CR-00081, 2000 WL 14691, at *1 (Tenn. Crim. App.
Jan. 11, 2000), perm. to appeal denied (Tenn. Sept. 25, 2000).

        The petition for post-conviction relief consists of nine legal-sized pages, of mostly single-
spaced type. Taking the most expansive view of the pro se petition, it appears to combine claims
that were raised unsuccessfully at trial and on direct appeal and recasts at least some of them as
complaints of ineffective assistance by both trial and appellate counsel. As did the post-conviction
court in its review of the petition, we will set out the petitioner’s claims, as best we understand them.

        Claiming that he did not receive a fair trial because of pretrial publicity, the petitioner states:

                        Yet Petitioner from Arrest to Trial and ReTrial was subject to
                The News Media Constant Exploitation of said Charges and No fair
                trial could ever be had in Carter County and Counsel of Recod [sic]
                Did Nothing to prevent same to the harms way of Petition in his Day
                in Court, and Unjust Verdicts, and Illegal Imprisonment for same.

No facts or details are provided as to this claim.

       Apparently, the petitioner reargues the claim made in his direct appeal that the trial court, sua
sponte, should have ordered a mental evaluation for him and that, in this regard, both trial and
appellate counsel “weakly argued” this point. However, on appeal, this court determined that “a
reasonable judge in the trial court’s position would not have doubted the [petitioner’s] competency.”
Arnold, 2000 WL 14691, at *3. The petitioner also claims that his appellate attorney presented a


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“weak argument” that certain remarks of the prosecutor during closing statements should have
resulted in a mistrial. The offending remarks were not revealed, but we note that, on direct appeal,
this court concluded that the State’s comment during final argument that the jury “had not heard any
proof contrary to the state’s position” was a “proper” argument. Id. at *4.

        The petitioner claims that both trial and appellate counsel were ineffective for failing to
present “winable” arguments as to “Total Fabrication” of State’s witnesses and for failing to assess
or present his life’s history to show he was incompetent. He concludes that counsel was ineffective
because a “Diminished Capacity Defense [was] Not Allowed” and that the trial court admitted illegal
evidence by allowing his ex-wife to testify in violation of the marital privilege and by allowing the
“alleged” victim to perjure herself at the trial. Additionally, counsel was ineffective for not
presenting arguments on all of the petitioner’s pro se filings before the trial began and for allowing
a “Gross Miscarriage of Justice” by not seeking an appellate court order prior to the trial to block
“the Rail-Roading of [the petitioner] by the Bias[ed] and Prejudice[d] [trial court judge’s] Gestapo
Like Court.” These claims are presented as allegations unadorned with any supporting facts.

         The petitioner complains about the fact that the trial court, apparently, admitted into evidence
four photographs of the “alleged” victim although he was not in the photographs. He asserts that
witness credibility was “not properly argued” by appellate counsel and, apparently, trial counsel as
well. The petitioner argues that “there was no strong evidence against [him], just prefabricated” by
his ex-wife and that exculpatory evidence was withheld by both the State and his own trial attorney.
Apparently, he claims that he is the victim of cruel and unusual punishment because the State
transported him in chains even though he had a “collapsed Lumbo Sacral Spine” and that he was
denied his right to a speedy trial. Trial counsel was ineffective for not advising the jury that the
proceeding was a “Malicious Prosecution” and a “Vindictive Prosecution” by his ex-wife. Although
it is unclear how this claim fits within the petition, if it does at all, he argues that the trial court “had
a Computer from the Higher Courts access to all cases pertaining to any case and used his Judge Roy
Bean Version Nazi Like against Petitioner,” which counsel permitted to happen and did not present
as an issue on appeal. He claims that, following the convictions, he was sent to “death [row] at
Riverbend Maximum Security Prison,” which was undeserved cruel and unusual punishment. He
argues that trial counsel was ineffective for not investigating his case. He argues that he was denied
jail credits and that the trial court, the prosecutor, and his attorney changed the dates on the
“affidavit, warrant and indictments” from “September 1993 up to October 1994” and changed “code
No’s” as well.

       Tennessee Code Annotated section 40-30-206(d) and (f) sets out the circumstances under
which a petition for post-conviction relief may be dismissed without a hearing and the procedure for
doing so:

                        (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


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                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.

                        (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.

        In Burnett v. State, 92 S.W.3d 403 (Tenn. 2002), the decision which our supreme court
directed that we utilize in our reconsideration of this matter, the petitioner had filed a pro se post-
conviction petition, which appointed counsel had not amended, alleging “(1) that his pleas were
unlawfully induced or involuntarily entered without an understanding of the nature and consequences
of the pleas; (2) that he did not receive the effective assistance of counsel; and (3) ‘other grounds.’”
Id. at 405. Quoting from the petition, the court detailed the “other grounds”:

                       January 22, 1999, the last day before the trial, the defendant's
                counsel and mitigation specialist visited the defendant at the
                Lauderdale County, Tennessee jail with a TV and video cassette
                recorder machine and played a tape of the 20/20 special he recorded
                the night before January 22. It was a special of an inmate awaiting
                the Lethal Injection on Death Row. The show talked about the
                inmate['s] last days, last hours, last meals, and last time with family.

                         After 19 months of leading the defendant on, the defendant's
                defense team showed their true defense strategy, using coercion,
                terror, inducement, and subtle or blatant threats, they induced the
                defendant to plead guilty. So the plea was not willingly and
                intelligently made because of the method used to obtain it and so the
                plea is involuntary because it was unlawfully induced with an
                unqualified Death Penalty case counsel.

Id.

        In Burnett, the post-conviction court had dismissed the petition without a hearing and, as in
the present case, without appointing counsel, the court concluding “that the petition failed to allege
facts sufficient to entitle the petitioner to relief.” Id. at 406. This court upheld the dismissal of the


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petition, and the supreme court then affirmed the judgment of this court, reviewing the pleading
requirements for a petition for post-conviction relief:

                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. Tenn. Code Ann. § 40-30-206(d) (1997). A
                bare allegation that a constitutional right has been violated and mere
                conclusions of law shall not be sufficient to warrant any further
                proceedings. Id. Additionally, failure to state a factual basis for the
                grounds alleged shall result in immediate dismissal of the petition.
                Id.

Id. at 406.

      Additionally, the supreme court explained the process to be used by a court in determining
whether a post-conviction petition should be dismissed without a hearing:

                First, the trial court considers the petition to determine whether the
                petition asserts a colorable claim. A colorable claim is defined in
                Supreme Court Rule 28 § 2(h) as "a claim that, if taken as true, in the
                light most favorable to the petitioner, would entitle petitioner to relief
                under the Post-Conviction Procedure Act." Therefore, if the facts
                alleged, taken as true, fail to show that the petitioner is entitled to
                relief, or in other words, fail to state a colorable claim, the petition
                shall be dismissed. See Tenn. Code Ann. § 40-30-206(f) (1997).

Id.

         In this matter, the post-conviction court entered a written order setting out its findings of fact
and conclusions of law as to the insufficiencies of the petition. Referring to the pleading requirement
of Tennessee Code Annotated section 40-30-206(d) and reciting certain of the conclusory allegations
set out in the petition, the post-conviction court stated that “[t]his Court has read this Petition no less
than three or four times, and each time the result is unmistakably the same, that is, [it is] confusing,
and is fatally devoid of facts.” The post-conviction court then found:

                         The Court could continue listing numerous instances of these
                types of allegations by the petitioner, but the need to do so is not
                necessary. This Court has no alternative in finding that this petition
                fails to state a clear and specific statement of the grounds upon which
                relief is sought. Furthermore, it does not contain a full disclosure of
                the factual basis of the grounds asserted. Finally, the Petition
                contains [bare] allegations of violations of constitutional rights, and
                mere conclusions of law.


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                       This court is not unmindful that the statute provides that the
               Trial Court can allow a [pro se] petitioner fifteen (15) days within
               which to amend the petition to comply with the statute, however, this
               statute does not mandate that a Judge do so. This court in reading this
               petition is of the opinion that to allow the fifteen (15) days to amend
               the petition to comply with the statute would be an exercise in futility.

                       In all fairness to this petitioner, this court has considered
               whether all the facts stated in the Petition, when taken together, could
               constitute grounds for ineffective assistance of counsel. In [the]
               reading of this petition, either three [or] four times, this court finds
               that the facts do not state any proof of ineffective assistance of
               counsel in the slightest degree, and does not state any prejudice to this
               petitioner.

        In Harris v. State, 996 S.W.2d 840, 841 (Tenn. Crim. App. 1999), this court examined similar
allegations of ineffective assistance of counsel and determined that they were insufficient to avoid
dismissal without a hearing:

                       Regarding the allegation of ineffective assistance of counsel,
               relevant portions of the petition for post-conviction relief state that
               the Defendant's attorney did not have the Defendant's full interest in
               mind, failed to file meaningful and "much-needed" motions, failed to
               file mitigating circumstances regarding sentencing, did not represent
               the Defendant zealously, and performed no investigation of witnesses
               on the Defendant's behalf. The trial judge determined that these
               allegations did not assert a colorable claim because the petition did
               not allege any facts relative to sentencing that were not considered at
               the time the Defendant was sentenced; and the petition did not name
               any witness whom counsel should have interviewed, what such a
               witness's testimony would have been, whether he requested counsel
               to interview such witnesses, or how any such witness's testimony
               would have affected the verdict. We note that the petition does not
               suggest what meaningful or "much-needed" motions the Defendant
               believes his attorney should have filed.

       Accordingly, the court in Harris affirmed the post-conviction court’s dismissal of the petition
without a hearing, explaining the pleading deficiencies:

                       Although the petition alleges the ineffective assistance of
               counsel, it does not contain a full disclosure of the factual basis of the
               grounds asserted. The petition instead contains bare allegations of
               violations of constitutional rights and mere conclusions of law.


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                 Although the statute grants the trial judge the discretion to allow a pro
                 se petitioner fifteen days within which to amend the petition to
                 comply with the code section, the statute does not mandate that the
                 judge do so. We believe the trial judge acted within his discretionary
                 authority in summarily dismissing the petition for post-conviction
                 relief.

Id. at 842.

           To complete our review of this matter, we return to the bases by which we test the sufficiency
of the allegations of a petition for post-conviction relief: Tennessee Code Annotated section 40-30-
206(d) requires “a clear and specific statement of all grounds upon which relief is sought, including
full disclosure of the factual basis of those grounds,” providing that “[a] bare allegation that a
constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant
any further proceedings;” and Supreme Court Rule 28, § 2(H), defining a colorable claim as “a claim
. . . that, if taken as true, in the light most favorable to the petitioner, would entitle petitioner to relief
under the Post-Conviction Procedure Act.” In this matter, the petitioner has alleged, in essence, that
pretrial publicity prevented his receiving a fair trial in Carter County and that trial counsel was
ineffective, presumably, for failing to seek a change of venue. Absolutely no facts are alleged either
to explain or support this allegation. In Burnett, our supreme court affirmed, after appointment of
counsel who had not filed an amended petition, the dismissal without a hearing of an ineffective
assistance of counsel claim which “fail[ed] to allege any specific facts establishing deficient
performance or prejudicial effect on the outcome of his case. 92 S.W.3d at 408. Likewise, in Harris,
where the post-conviction court had summarily dismissed the petition without appointing counsel,
this court determined to be inadequate similar vague claims that trial counsel was ineffective, inter
alia, for failing to file unspecified motions or investigate unidentified witnesses. 996 S.W.2d at 841-
42. Accordingly, in the case presently under appeal, we conclude, as did the post-conviction court,
that the petitioner presented only a bare and conclusory allegation as to a constitutional violation,
and, as such, his claim was not colorable so as to avoid summary dismissal.

                                             CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the post-conviction court’s
dismissal of the petition.


                                                           ___________________________________
                                                           ALAN E. GLENN, JUDGE




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