       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT JACKSON              FILED
                         MAY SESSION, 1997          October 13, 1997

                                                   Cecil Crowson, Jr.
                                                   Appellate C ourt Clerk

ANTONIO CRENSHAW,               )   C.C.A. NO. 02C01-9607-CR-00217
                                )
           Appe llant,          )
                                )   SHELBY COUNTY
                                )
V.                              )
                                )   HON. BERNIE WEINMAN, JUDGE
STATE OF TENNESSEE,             )
                                )
           Appellee.            )   (POST-C ONVIC TION)




FOR THE APPELLANT:              FOR THE APPELLEE:

ANTONIO L. CRENSHAW, pro se     JOHN KNOX WALKUP
Inmate #123924                  Attorney General & Reporter
R.M.S.I., Unit 5
7475 Cockrill Bend Ind. Road    JANIS L. TURNER
Nashville, TN 37209-1010        Assistant Attorney General
                                2nd Floor, Cordell Hull Building
                                425 Fifth Avenue North
                                Nashville, TN 37243

                                JOHN W. PIEROTTI
                                District Attorney General

                                REGINALD HENDERSON
                                Assistant District Attorney General
                                201 Poplar Avenue, Ste. 301
                                Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                  OPINION

              The Petitioner, Antonio Crenshaw, appeals from the order of the

Shelby County Criminal Cour t dism issing his second petition for post-conviction

relief without an evidentiary hearing. In its order, the trial court dismissed the

petition based upon Tennessee Code Annotated section 40-30-202(c) (Supp.

1996) because the Petitioner’s prior post-conviction petition had been resolved

on the m erits. W e affirm the judgm ent of the tria l court.



              On July 16, 1990, Petitioner was convicted of the offense of rape

following a trial in the Criminal Co urt of Shelby Co unty. This court affirmed the

conviction on direct a ppeal, an d the supreme court denied his application for

permission to appeal on January 27, 1992. On November 3, 1993, he filed a

petition for post-c onvictio n relief a ttackin g this conviction based upon allegations

of receiving ineffective assistance of counsel. The trial court dismissed the

petition and this court affirmed the dismissal of the post-conviction petition on

August 30, 1995.      Antonio Crens haw v. S tate, No. 02C01-9502-CR-00050,

Shelby C ounty (T enn. C rim. App ., Jackso n, Aug. 3 0, 1995 ).



              On April 18, 1996 , Petitioner filed his seco nd petition for post-

conviction relief in the Criminal Court of Shelby County. As grounds for relief, he

alleged that the indictment was insufficient because it failed to allege all of the

eleme nts of rape, that there was an unconstitutional selection of both the grand

jury which return ed the indictm ent an d the p etit jury which convicted him, that the

State refused to disclose exculpatory eviden ce, that there were various errors by



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the trial court during and a fter his tria l, that the State was guilty of prosecutorial

miscond uct, and that the p rosecution us ed perjured tes timony.



              The new “Post-Conviction Proce dure A ct” was enac ted by P ublic

Acts of 1995, ch. 207. Section 3 of that Act provided that the Act shall go vern a ll

petitions for post-co nviction relief filed after May 10, 1995. Petitioner’s second

petition, therefore, is governed by the new Act. Tennessee Code Annotated

section 40-30-202(c) provides in pertinent part as follows:


       (c) This part co ntem plates the filing of only one (1) p etition for po st-
       conviction relief. In no event may more than one (1) petition for
       post-conviction relief be filed atta cking a sing le judgm ent. If a prior
       petition has been filed which w as reso lved on th e merits by a court
       of competent jurisdic tion, an y seco nd or s ubse quen t petition shall b e
       summ arily dismis sed.



              Regarding the allegations that the State failed to disclose

exculpatory evidence, the Petitioner alleges that the eviden ce perta ined to

inconsistent statements and “other evidence” made by and concerning

prosecution witnesses which contradicted the State’s theory of the case against

Petitioner. Specifically, Petitioner alleges that “[a]mong others, the [S]tate made

a deal with State witness Katron Kendrick to reduce the pending charges against

him in exchange fo r his false ev idence conce rning the seque nce of ev ents

involving the facts of this case .”      He a lso alleg es the prose cution withhe ld

computer printouts and jail logbooks which conclusively showed that Petitioner

was not ho used or phys ically present at the location of the rape. Petitioner fails

to allege when or how he obtained the information which forms the basis of these

allegations and did not file any exhibits with his petition to support the allegations.




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             Therefore, we conclude that the allegations in the petition concerning

the failure to disclose exculpatory evidence do not rise to the level nece ssary to

grant relief under Burford v. State, 845 S.W .2d 204 (Tenn . 1992).



             W e have carefully reviewed the rema ining a llegatio ns co ntaine d in

the petition and note that all could have b een b rough t either in the direct appeal

of the conviction or in the first petition for post-co nviction relief. Petitioner does

not set forth the reasons that he did not bring these grounds in prior proceedings,

other than asserting that the new Post-Conviction Procedure Act allows him one

year from May 10, 1995 to file a petition for post-conviction relief. This assertion

is without m erit. See Arnold C arter v. State , ____ S.W.2d ____, No . 03-S-01-

9612-C R-001 17, Mon roe Co unty (Te nn., at Kn oxville, Sep t. 8, 1997).



             Petitioner also argues on appeal that the trial court erred by

dismissing his petition without entering a preliminary order pursuan t to

Tennessee Code Annotated section 40-30-207. However, as argued by the

State in its brief, Tennes see C ode A nnota ted se ction 4 0-30- 206(b ) states in

pertinent part as follows : “If it plainly appears from the face of the petition, any

annexed exhibits or the prior proceedings in the case that . . . a prior petition was

filed attacking the conviction and was resolved on the m erits, the judge shall

enter an order dismissing the petition.” Likewise, Petitioner’s assertions that the




                                          -4-
trial court did not properly comply with the provisions of Tennessee Code

Anno tated sec tion 40-3 0-206(a ) are witho ut merit.



             We affirm the ju dgme nt of the trial co urt.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
GARY R. WA DE, Judge


___________________________________
JOHN H. PEAY, Judge




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