                                                                                             10/02/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 28, 2018

                 SHAWN SIMMONS v. RANDY LEE, WARDEN

                   Appeal from the Circuit Court for Lincoln County
                    No. S1100100      Forest A. Durard, Jr., Judge
                       ___________________________________

                            No. M2018-00150-CCA-R3-PC
                        ___________________________________

The Petitioner, Shawn Simmons, appeals the Lincoln County Circuit Court’s denial of his
request for a delayed appeal. Having construed the Petitioner’s pleading as a motion to
reopen his first post-conviction petition, we dismiss this appeal for lack of jurisdiction
because the Petitioner failed to comply with the statutory requirements governing an
appeal from the denial of a motion to reopen.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

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

Shawn Simmons, Mountain City, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Ann L. Filer, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        At trial, a Lincoln County jury convicted the Petitioner of first degree
premeditated murder. State v. Shawn Simmons, No. M2009-01362-CCA-R3-CD, 2010
WL 3719167, at *1 (Tenn. Crim. App. Sept. 23, 2010), perm. app. denied (Tenn. Feb. 17,
2011). The Petitioner filed a direct appeal, arguing that (1) the evidence was insufficient
to sustain his conviction, (2) the trial court erred by instructing the jury on flight, and (3)
the trial court improperly allowed the State to impeach the Petitioner with convictions
more than ten years old in violation of Tennessee Rule of Evidence 609. Id. On appeal,
this court affirmed the Petitioner’s conviction, and the Tennessee Supreme Court denied
permission to appeal. Id.
       Next, the Petitioner filed a post-conviction petition, alleging that trial counsel
provided ineffective assistance by (1) replacing his original counsel; (2) inadequately
preparing and investigating his case; (3) failing to request a sequestered jury; (4) failing
to file a motion to suppress; (5) failing to question a witness about the petitioner’s
carrying a weapon prior to the shooting; (6) failing to object to certain evidence; (7)
failing to supplement the record; and (8) failing to raise the issue of “publicity” on
appeal. Shawn Simmons v. State, No. M2012-00987-CCA-R3-PC, 2013 WL 1225857,
at *1-2 (Tenn. Crim. App. Mar. 27, 2013), perm. app. denied (Tenn. Sept. 19, 2013).
After the post-conviction court denied relief, this court affirmed the post-conviction
court’s judgment, and the Tennessee Supreme Court denied permission to appeal. Id. at
*1.

        Thereafter, the Petitioner filed a pro se writ of habeas corpus under 28 U.S.C. §
2254, challenging the legality of his confinement under his judgment of conviction for
first degree premeditated murder. Shawn Simmons v. Cherry Lindamood, No. 4:14-CV-
27-TWP-SKL, 2017 WL 4228758, at *1 (E.D. Tenn. Sept. 22, 2017). The Petitioner
argued that trial counsel provided ineffective assistance by failing to call a witness, by
replacing original counsel, by failing to sequester the jury, by failing to object to certain
evidence, and by failing to file a motion to suppress. Id. at *3-7. The Petitioner also
asserted that the “highly circumstantial” evidence presented at trial was insufficient to
sustain his conviction and that he was denied a fair trial when the trial court issued an
instruction on flight. Id. at *7-9. In a memorandum opinion, the district court held that
no evidentiary hearing was warranted, that the Petitioner’s section 2254 petition was
denied, and that the action was dismissed. Id. at *1.

        On November 16, 2017, the Petitioner filed a document entitled “Request for a
Delayed Appeal,” alleging that he had been denied direct appellate review of the
sufficiency of the evidence supporting his conviction for first degree murder.
Specifically, he claimed that “the State ha[d] changed the facts on appeal” by asserting
that the Petitioner told the victim he had disrespected his family for the last time when the
evidence presented at trial showed that it was the victim who told the Petitioner he had
disrespected his family for the last time.

      On January 4, 2018, the post-conviction court signed an order summarily
dismissing the petition. In it, the court made the following findings of fact and
conclusions of law, in pertinent part:

              In the instant matter, [the P]etitioner has had his day in court with
       the post[-]conviction issue. The same was denied by the post[-]conviction
       court, upheld by the appellate court[,] and the T.R.A.P. 11 application was
       denied. Further, there is no reason the court can see and none advanced by
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       the [P]etitioner why he could not have presented this claim at the original
       post[-]conviction proceedings or even on direct appeal for that matter.

              Even a review under T.C.A. 40-30-117[, which allows a petitioner to
       file a motion to reopen the first post-conviction petition,] provides no
       benefit to the [P]etitioner. There is no claim the [P]etitioner was caught in
       a “procedural trap[,”] no later[-]arising claim, no evidence of his
       incompetency or attorney misconduct.

This order was entered on January 9, 2018.

      On January 19, 2018, the Petitioner filed a document entitled “Notice of Appeal,”
wherein he asserted the following:

       Notice is hereby given that the appellant, Shawn Simmons, Pro Se,
       pursuant to Tenn. R. App. P., rule 3, [is] requesting to appeal [the] order
       denying his petition for a delayed appeal. The Circuit Court for Lincoln
       County, Tennessee, 17th Judicial District, issued [an] order denying
       appellant [a] petition for a delayed appeal on January 4, 2018.

The above notice was not accompanied by any pleadings filed by the parties or any
orders entered by the post-conviction court.

                                       ANALYSIS

       The Petitioner contends that the post-conviction court should have granted him a
delayed appeal because he was denied direct appellate review regarding the sufficiency of
the evidence supporting his conviction for first degree premeditated murder.
Specifically, he claims “the State . . . changed the facts on appeal” by asserting that the
Petitioner told the victim he had disrespected his family for the last time when the
evidence presented at trial showed that it was the victim who told the Petitioner he had
disrespected his family for the last time. The Petitioner, who did not include his trial
transcript in the appellate record, maintains that this one unconfirmed discrepancy makes
the evidence insufficient to sustain his conviction, despite this court’s conclusion on
direct appeal that the proof of the Petitioner’s guilt was “overwhelming” in light of the
evidence connecting him to the victim’s murder and the presence of several
circumstances creating an inference of premeditation. Shawn Simmons, 2010 WL
3719167, at *2-4, *6.

        Here, the Petitioner filed both a direct appeal and a post-conviction petition prior
to filing his “Request for a Delayed Appeal.” The Post-Conviction Procedure Act allows
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for a delayed appeal when a petitioner has been “denied the right to an appeal from the
original conviction.” T.C.A. § 40-30-113(a). While the right to a delayed appeal was
established by the Post-Conviction Procedure Act, see id., the procedure for
implementing this right was provided in Supreme Court Rule 28, § 9(D). State v. Evans,
108 S.W.3d 231, 235-36 (Tenn. 2003). Specifically, Supreme Court Rule 28, § 9(D)
permits either a trial court or the Court of Criminal Appeals to grant a delayed appeal as
post-conviction relief when the petitioner, through no fault or his or her own, was denied
the right to file a direct appeal pursuant to Rule 3 of the Tennessee Rules of Appellate
Procedure. Stokes v. State, 146 S.W.3d 56, 59 (Tenn. 2004).

       However, the Post-Conviction Procedure Act “contemplates the filing of only one
(1) petition for post-conviction relief” and states that “[i]f a prior petition has been filed
which was resolved on the merits by a court of competent jurisdiction, any second or
subsequent petition shall be summarily dismissed.” T.C.A. § 40-30-102(c). Because the
Petitioner had filed both a direct appeal and a post-conviction petition, his only
opportunity for relief in this court, based on the aforementioned grounds, was pursuant to
a motion to reopen his first post-conviction petition. See T.C.A. § 40-30-117.

       A petitioner has no appeal as of right from the trial court’s denial of a motion to
reopen a post-conviction petition under Tennessee Rule of Appellate Procedure 3(b).
Fletcher v. State, 951 S.W.2d 378, 382 (Tenn. 1997). Instead, “an appeal from the denial
of a motion to reopen is a discretionary appeal[.]” Id. When a motion to reopen the first
post-conviction petition is denied, a petitioner has thirty days to file an application for
permission to appeal in this court, and this application must be accompanied by copies of
all documents filed by the parties in the trial court as well as the trial court’s order
denying the motion. T.C.A. § 40-30-117(c); Tenn. S. Ct. R. 28, § 10(B). The Tennessee
Supreme Court, reviewing the requirements of Code section 40-30-117(c), held that it
“outlines four requirements of an appeal from a motion to reopen to be considered: (1)
the timeliness of filing, (2) the place of filing, (3) the application to be filed, and (4) the
attachments to the application.” Graham v. State, 90 S.W.3d 687, 689 (Tenn. 2002). The
court also explained that in order for a pleading entitled “Notice of Appeal” to be treated
as an application for permission to appeal, the pleading “must include the date and
judgment from which the petitioner seeks review, the issue which the petitioner seeks to
raise, and the reasons why the appellate court should grant review.” Id. at 691. As
relevant here, when a petitioner fails to follow the statutory requirements to appeal the
denial of a motion to reopen a post-conviction petition, this court lacks jurisdiction to
review the appeal. Curtis Wren v. State, No. W2017-00500-CCA-R3-PC, 2017 WL
4331054, at *3 (Tenn. Crim. App. Sept. 28, 2017), perm. app. denied (Tenn. Dec. 8,
2017); Matthew Dixon v. State, No. W2015-00130-CCA-R3-PC, 2015 WL 6166604, at
*5 (Tenn. Crim. App. Oct. 21, 2015) (citing Mario Gates v. State, No. W2002-02873-
CCA-R3-PC, 2003 WL 23100815, at *2 (Tenn. Crim. App. Dec. 31, 2003)).
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       Here, the Petitioner filed his “Notice of Appeal” in this court on January 19, 2018.
A notice of appeal may be construed as an application for permission to appeal only if the
notice “contain[s] sufficient substance and information to constitute a proper application
for permission to appeal with sufficient documentation[.]” Graham, 90 S.W.3d at 691.
While the notice in this case was timely and provided the entry date and judgment from
which the Petitioner sought review, it failed to state the issues for review and failed to
explain why this court should grant review. See id. In addition, the notice was not
accompanied by the required documents. See T.C.A. § 40-30-117(c). Consequently, the
notice of appeal in this case fails to satisfy the requirements for an application for
permission to appeal. Instead, in both form and substance, this document is a notice of
appeal pursuant to Rule 3(b). Because the Petitioner failed to properly seek review of the
post-conviction court’s denial of his motion to reopen, we lack jurisdiction to consider
this appeal.

                                    CONCLUSION

      Because the court lacks jurisdiction to review this appeal, it is dismissed.


                                             ____________________________________
                                             CAMILLE R. MCMULLEN, JUDGE




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