         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs April 10, 2007

                    BILLY HARRIS v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                  Nos. 01-02675, 01-02676   Carolyn Wade Blackett, Judge



                      No. W2006-01150-CCA-R3-PC - Filed July 3, 2007


The pro se petitioner, Billy Harris, appeals the summary dismissal of his pro se petition for post-
conviction relief, arguing that he was entitled to the appointment of counsel and an evidentiary
hearing. Following our review, we reverse the judgment of the post-conviction court and remand
for the appointment of counsel.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOSEPH M. TIPTON , P.J., and DAVID
G. HAYES, J., joined.

Billy Harris, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Lora D. Fowler, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                            OPINION

                                               FACTS

       The petitioner was convicted by a Shelby County Criminal Court jury of rape and three
counts of aggravated kidnapping and was sentenced by the trial court to an effective sentence of
twenty years in the Department of Correction. On direct appeal, this court concluded that the
evidence was sufficient to sustain the convictions but that the trial court erred by not merging the
kidnapping convictions and by misapplying several enhancement factors to the sentences.
Accordingly, we remanded the case to the trial court for resentencing and entry of new judgment
forms. State v. Billy Harris, No. W2003-01911-CCA-R3-CD, 2004 WL 1765532, at *12 (Tenn.
Crim. App. Aug. 4, 2004), perm. to appeal denied (Tenn. Dec. 20, 2004). On February 28, 2005, the
trial court entered new judgment forms in the case, which reflect that the petitioner was resentenced
to an effective ten-year sentence in the Department of Correction.

        On February 1, 2006, the petitioner filed a pro se petition for post-conviction relief in which
he raised a number of claims, including ineffective assistance of counsel, prosecutorial misconduct,
and various errors in the trial court’s evidentiary rulings. On May 3, 2006, the post-conviction court
dismissed the petition without the appointment of counsel or an evidentiary hearing, finding that the
petitioner had failed to provide clear and specific statements containing a factual basis for the
grounds alleged in the petition. On May 19, 2006, the petitioner filed a timely notice of appeal to
this court.

                                              ANALYSIS

        Asserting that his petition presented colorable claims for relief, the petitioner contends that
the post-conviction court should have appointed counsel and held an evidentiary hearing to allow
him to present evidence in support of those claims. The State responds that the post-conviction court
properly dismissed the petition on the basis that the petitioner failed to state an adequate factual basis
for the grounds alleged in the petition. We review the post-conviction court’s dismissal of the
petition, as an issue of law, de novo on the record without a presumption of correctness. See Burnett
v. State, 92 S.W.3d 403, 406 (Tenn. 2002).

        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



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       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) (2006). A petition presents a “colorable claim,” sufficient to
withstand summary dismissal, when the facts alleged, “‘taken as true’” and “‘in the light most
favorable to [the] petitioner’” would entitle the 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)).

        The petitioner raises a number of claims in his petition, including that the trial court
improperly admitted evidence of his prior bad acts, that he received ineffective assistance of counsel,
and that the prosecutor engaged in various acts of misconduct in the prosecution of his case.
However, this court reviewed on direct appeal the claims, alleged once again, of the improper
admission of evidence, including evidence of prior bad acts, and concluded that none of the trial
court’s alleged errors in evidentiary rulings rose to the level of plain error. See Billy Harris, 2004
WL 1765532, at *11. Furthermore, the petitioner’s allegations that the prosecutor knowingly
presented false testimony and engaged in improper closing argument could have been raised on
direct appeal and, thus, are waived. See Tenn. Code Ann. § 40-30-106(g).

        As for his claim of ineffective assistance of counsel, the petitioner alleges that trial counsel
was ineffective for failing to engage in “adequate pretrial preparation and investigation.”
Specifically, he alleges, among other things, that he informed trial counsel of his “prior mental
history,” but counsel took no steps to have him evaluated for competency to stand trial; that he
believes trial and appellate counsel “may not have investigated the facts of the case and interviewed
any potential witnesses on” his behalf; and that trial counsel failed to present relevant evidence that
would have shown that the victim, his former girlfriend, had voluntarily continued in an ongoing
relationship with the petitioner after obtaining an order of protection against him.

        The petitioner provides no details of his “prior mental history” or of what witnesses or facts
trial counsel failed to discover. We note that, at the petitioner’s trial, the victim acknowledged that
she had a relationship with the petitioner following the rape. Billy Harris, 2004 WL 1765532, at *2.
Further, we note that defense counsel presented at trial witnesses who, if believed, would have
corroborated the petitioner’s claim that he had not raped the victim. However, because pro se
petitions are to be held to less stringent standards than those prepared by an attorney, with the
petitioner given the aid of counsel if it cannot be conclusively determined from the petition and
accompanying records whether he is entitled to relief, we reverse the summary dismissal of the pro
se petition and remand to the post-conviction court for the appointment of counsel to aid the
petitioner in drafting a more complete petition. See Billy Joe Henderson v. State, No.
E2001-00438-CCA-R3-PC, 2001 WL 1464544, at *1 (Tenn. Crim. App. Nov. 19, 2001) (citing
Allen v. State, 854 S.W.2d 873, 875 (Tenn. 1993); Swanson v. State, 749 S.W.2d 731, 734 (Tenn.
1988)).




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                                       CONCLUSION

       Following our review, we reverse the summary dismissal of the petition and remand to the
post-conviction court for the appointment of counsel to draft a more complete petition.


                                                    ___________________________________
                                                    ALAN E. GLENN, JUDGE




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