        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs January 5, 2010

               COREY LYNN CLARK v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Gibson County
                       No. 7286    Clayburn L. Peeples, Judge


                No. W2009-01610-CCA-R3-PC - Filed March 12, 2010


The Petitioner, Corey Lynn Clark, appeals the Gibson County Circuit Court’s summary
dismissal of his petition for post-conviction relief. On appeal, the Petitioner contends that
the post-conviction court violated his due process rights by summarily dismissing his petition
without following the requirements of the Post-Conviction Procedure Act as stated in
Tennessee Code Annotated section 40-30-101, et. seq. Upon review, we reverse and remand
for further proceedings in accordance with the Post-Conviction Procedure Act.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN and
J. C. M CL IN, JJ., joined.

Corey Lynn Clark, Pro Se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; and Garry G. Brown, District Attorney General, for the Appellee, State of
Tennessee.

                                         OPINION

       The Petitioner was convicted of second degree murder, a Class A felony, and was
sentenced to serve twenty years at 100 percent in the Tennessee Department of Correction.
See State v. Cory Lyn Clark, No. W2005-01020-CCA-R3-CD, 2006 WL 2191255, at *1
(Tenn. Crim. App., at Jackson, Aug. 2, 2006), perm. to appeal denied (Tenn. Dec. 18, 2006).
The Petitioner’s conviction was affirmed on direct appeal. See id.

       The Petitioner then filed a petition for post-conviction relief, and the post-conviction
court granted relief by “voiding” his December 20, 2004 conviction for second degree
murder and his twenty-year sentence.1 On September 22, 2008, the Petitioner entered a guilty
plea to the same offense, second degree murder, and received a fifteen-year sentence at 100
percent pursuant to the plea agreement. On May 7, 2009, the Petitioner filed a pro se petition
for post-conviction relief on his conviction pursuant to his plea agreement, claiming, among
other things, that: (1) his guilty plea was involuntary; (2) the State failed to disclose evidence
in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963); and (3) he received
ineffective assistance of counsel because counsel failed to inform him of the sentence that
he would serve in confinement pursuant to his plea agreement. On July 10, 2009, the post-
conviction court summarily dismissed the petition by written order without stating any
reasons for its dismissal other than “for good cause shown.” On July 22, 2009, the Petitioner
filed a timely notice of appeal.

        In the opinion on direct appeal, this court provided a summary of the underlying facts
in this case:

               The defendant shot and killed Nakia Partee, the mother of his child,
        during an altercation in his bedroom. The defendant claimed that he shot the
        victim in self-defense after the victim allegedly picked up a knife and stabbed
        him.

                At the trial, Lieutenant Bill Baker, Assistant Chief of Police for
        Humboldt, testified that he investigated the death of the victim. He was
        off-duty when he learned of the shooting and of the presence of the defendant
        with a stab wound at the police department. He said that when he arrived,
        Sergeant Tony Williams had secured the scene and Officer Mike Lewis had
        begun an investigation. Additionally, Melvin Stewart, the defendant’s uncle,
        and Louetta Whitehorn, the defendant’s grandmother, were present. He
        testified that they found the victim’s body in the defendant’s bedroom between
        the bed and the dresser and found the knife near the body, next to the dresser.
        Additionally, they discovered a bullet casing beneath the victim’s chest, twelve


        1
          The record is unclear regarding the post-conviction court’s grant of relief on the Petitioner’s first
petition. Neither a copy of the Petitioner’s first post-conviction petition nor the court’s written order
granting post-conviction relief is included in the record.
         The only information regarding the post-conviction court’s grant of relief on the first petition is
included in the October 15, 2008 judgment form pursuant to the guilty plea agreement under the Special
Conditions section, which states: “By agreement with the State, the court granted [the Petitioner’s post-
conviction petition], voiding his 12/20/04 conviction. [The Petitioner] shall receive credit for time spent in
TDOC since 12/20/04.”



                                                     -2-
inches from the right corner of the bed. The victim had gunshot wounds to the
left cheek and to the top right-hand side of the back of her head. He said they
sent the body for an autopsy. He also testified that he did not recall seeing
blood on the victim’s hands. Lieutenant Baker said the defendant came to the
police department after the incident. Officer Lewis later read the defendant his
Miranda rights and took the defendant’s statement in the presence of
Lieutenant Baker at approximately 11:47 p.m. The recorded statement was
played for the jury at trial, and the jurors were furnished with a transcription
to follow as the tape played. No objection was raised to either the playing of
the tape or the transcript. Lieutenant Baker testified that the defendant
indicated that he was standing with his arms extended when he fired at the
victim. He said that the defendant indicated that he placed the weapon under
some shrubbery at the police station before entering, and officers later found
the gun in that location. He said that the TBI ballistics analysis indicated that
the bullet and casing were discharged from the recovered weapon. He testified
that the defendant’s only wound was to his arm and that he had sustained no
apparent defensive wounds. The knife was submitted for analysis but they
were unable to develop any fingerprints from the knife. He further testified
that a second statement was taken from the defendant a few days later, but no
tape recording was available at trial. A transcription of the second statement
was read aloud to the jury. He noted that during the second statement, the
defendant attempted to explain why the victim was shot in the back of the head
as opposed to the face, as he had originally stated.

        On cross-examination, Lieutenant Baker testified that Reserve Officer
Kenny Perry discovered the weapon and turned it over to Officer Lewis. At
that time, there was a hair on the muzzle of the weapon but it was lost between
the recovery of the weapon and the trial. He acknowledged that the evidence
was compromised and that they “should have the hair, but [ ]do not.” He
further acknowledged that the tape recording of the second statement was lost.
He reiterated that no fingerprints were found on the knife. He said that the gun
was fired at close range and that he could not definitively say that the victim,
in a struggle with the defendant, did not turn at the moment that the shot was
fired. He said that different questions were asked in the first and second
interviews. He said that they asked the location of the gun in the first
interview and that the defendant said he did not want to walk into the police
department with a gun so he threw it in the shrubbery. He said that the
defendant was forthright about the location of the weapon and was cooperative
throughout the interviews.



                                       -3-
        On redirect examination, Lieutenant Baker testified that the transcript
of the second interview accurately reflected the contents of the interview. He
said that people do not always leave fingerprints. He also said that if the
murder weapon were held close to a foreign object, it might become trapped
between the slide and the barrel “before it cycles.” He noted that for the
defendant’s arms to be outstretched, as he admitted they were, the victim
would have to have been at least an arm’s length away from him. He also said
that if she had turned away, she would not have posed a threat to him. On
re-cross, he testified that no prints were taken from the gun. He agreed that
there were things that “could’ve [been] done differently” and admitted that the
taped statement should not have been lost.

        The next witness to testify was Officer Mike Lewis. Officer Lewis
testified that he is currently employed as a patrol officer with the Collierville
Police Department but was formerly employed as an investigator with the
Humboldt Police Department. He said that he was the investigator in the death
of the victim on October 19, 2002. He said that he was working at the police
department when the defendant walked in and stated that he had shot someone
at 115 Ethridge Street. The defendant said that his girlfriend had stabbed him,
and Officer Lewis testified that he observed only the stab wound to the
defendant’s left arm. He testified that he responded to the scene and found the
victim lying dead on the floor in the back bedroom. He said that Mr. Stewart
and Ms. Whitehorn were in the front of the house when he arrived on the
scene. He said that the defendant stated during an interview that he retrieved
the weapon from a top right drawer in the bedroom. He further said that when
they arrived, he noted that the dresser drawer was closed. He said that the
drawer “was stuffed with quite a bit of stuff, papers, et cetera” and that he was
not able to open the drawer with one hand because it was so full.

        On cross-examination, Officer Lewis testified that he collected the
evidence and took a recorded statement from the defendant. He said that the
defendant was cooperative. He said that he did not ask the defendant if he
closed the drawer and that he did not take a statement from anyone else
regarding the drawer. He said he also collected the knife and took photos of
the crime scene. He was unable to lift prints from the knife and did not
analyze the gun. He said that he conducted a second interview to ask further
questions and that he recorded both statements. He acknowledged that the tape
of the second interview was relevant, that it was now unavailable, and that this
was the first time that he had lost a tape. He said that he was not involved in



                                       -4-
the interview with Melvin Stewart. He also said that he did not take pictures
or ascertain the extent of the defendant’s injuries.

        On redirect examination, he testified that during the first interview, the
defendant stated that the victim was facing him when he shot her. Officer
Lewis further testified that he subsequently learned that the victim had been
shot in the back of the head. He again testified that he did not ask the
defendant if he shut the dresser drawer, but the defendant did not indicate that
he shut the drawer in relaying his version of the time line of events as they
occurred. He said the hospital treated and released the defendant. On re-cross,
he testified that he did not accompany the defendant to the hospital.

       The next witness was Sergeant Tony Williams of the Humboldt Police
Department. He testified that he was the first officer to respond to the crime
scene. He said that he found four subjects in front of the house when he
arrived and that they indicated that the victim was in the bedroom. He said
that the victim had a bleeding head wound. He called the paramedics who
verified that the victim was dead.

        Next, Reserve Officer Kenny Perry of the Humboldt Police Department
testified that he went to assist Sergeant Williams in responding to the crime
scene. He said that they secured the scene and the vehicle that the defendant
drove to the station. He testified that he discovered the weapon underneath
some shrubbery outside the station, approximately eight to ten-feet from the
vehicle.

        Next, Melvin Stewart, Jr., testified that he lives at 115 Etheridge and
that he is the defendant’s uncle. He was at the house on the night that the
victim was killed. He said he saw the defendant, the victim, and their child in
the yard between 7:00 and 7:30 p.m., but he did not overhear their
conversation. He testified that the defendant brought the child into the home,
that the victim returned about half an hour later, and that she “didn’t look real
happy.” Stewart said that the victim went into the bedroom, and he heard “a
pop.” Then the defendant came out of the bedroom, said the victim had cut
him, and told him to “see about the baby.” He said that the defendant left but
did not say where he was going. He also said that he never saw a gun. He
went into the bedroom and got the baby. He said that his mother, Louetta
Whitehorn, arrived at the home and that the police arrived shortly thereafter.
He did not know what the defendant did after going outside. He said that his



                                       -5-
mother went into the bedroom but that she did not touch or move anything. He
said he did not hear the defendant cry out in pain before the “pop.”

       On cross-examination, he again said the defendant brought the child
into the house and that neither the defendant nor the victim “seem[ed] too
happy.” He said that he saw the victim on the floor after he went in to get the
child and that he did not believe the child realized what had happened. He did
not remember if the defendant came back to get keys but he heard the car
leave. He had never heard the defendant and victim arguing prior to this
incident. He said that the defendant took care of the child “every time that [the
victim] needed him to.” He said that the child has cerebral palsy. He did not
hear the victim say why she came back the second time.

       On redirect examination, he estimated that the defendant kept the child
seven or eight times between the time he and the victim ended their
relationship in April and the time of the victim’s death. He did not recall
giving the police a statement after the incident. He said that he “may have”
told the police that he was “half-asleep” and dozed off when the victim and
defendant were in the bedroom.

        The next witness to testify was Christie Ball. She testified that she was
at the victim’s apartment on the day that she died. She arrived around 6:00
p.m. to accompany the victim to Jackson, Tennessee, to attend Homecoming
festivities at Lane College. She said the defendant came to the apartment
shortly after she arrived. She heard the victim repeatedly tell the defendant to
leave, and she believed that he was bringing their child back to the victim. She
said that the victim pushed him out of the door and that he hit the door and left.
She said he left the child and took the victim’s cellular phone. She said that
the victim left to retrieve her cellular phone at the defendant’s house and to
take the child to her mother’s house in Milan.

       Next, Denetta Bryson testified that she was a close friend to the victim.
She said that the relationship between the victim and defendant ended
approximately seven months before the victim’s death. She recalled that in
May 2002, she was with the victim when the defendant approached her and
they began arguing. She said the defendant told the victim that “if he couldn’t
have her that, you know, he would kill her.” The victim also let her listen to
phone messages left by the defendant approximately one week before her
death in which he expressed anger that she was going out, cursed at her, and
threatened to kill her. The defendant called the victim more than thirty times

                                       -6-
in a forty-five minute span in which she heard the defendant “yelling,
screaming, and cursing.” During cross-examination, she testified that she
spoke to the police about the phone conversations and messages. She said she
did not know if the officers listened to the messages or if they obtained the
victim’s cellular phone records.

        Next, Lynn Bailey testified that she was a cousin of the victim but did
not know the defendant. She said that after the defendant and the victim ended
their relationship, the victim tried to develop a social life. Bailey testified that
she had listened to approximately nine messages on the victim’s cellular
phone, one of which indicated that if the defendant could not have the victim,
no one could.

        Next, Tangi Bailey testified that she was a cousin of the victim and that
they worked together for two and a half to three years. She said that the
defendant and victim had ended their relationship six months prior to the
victim’s death and that they had argued from that time until her death. She
said that she heard a voice mail message left by the defendant on the victim’s
phone in which he implied that the victim was not answering the phone
because she was having sex with another man. She also stated that the
defendant would show up at the victim’s place of work unexpectedly after
their breakup.

       During cross-examination, Ms. Bailey admitted that there was never an
altercation at the victim’s job site. She claimed that the victim would ask her
if she had seen the defendant out with other women and that she responded
that she had seen him out on several occasions. On redirect, she said that the
victim’s mother usually kept the child when the victim went out and that the
defendant only kept him overnight “twice or so.”

        Next, Lieutenant Baker was recalled and testified that the defendant
stated in his interviews that he had left messages on the victim’s cellular phone
regarding their son but denied that he threatened to kill her or himself.

       The next witness to testify was Dr. Teresa Campbell, assistant medical
examiner to the regional forensic center in Memphis. She testified that her
autopsy on the victim determined that the cause of death was a contact gunshot
wound to the head. She said that there was no drugs or alcohol in the victim’s
system at the time of death. She said that the entrance wound was the top right
of the back of the head and that the exit wound was in the left cheek. She

                                        -7-
testified that a “contact wound” indicated that the muzzle of the gun was
against the skin at the time the gun was fired. She said that the injuries were
consistent with a hard contact wound, which indicated pressure applied to the
skin at the time of discharge. On cross-examination, she said that the victim
had no injuries other than the gunshot wounds and that she could not determine
the position of the defendant or the victim from the injuries.

       The State rested its case, and the defendant presented a motion for a
judgment of acquittal, which was overruled. The defense began their proof by
calling an acquaintance of the defendant.

       Andrea Vinson testified that she had a six-year relationship with the
defendant. She said that during her relationship with the defendant, the victim
followed them in a vehicle at a high rate of speed, forcing the defendant to
stop and speak with the victim. She said that they argued on a second occasion
outside a Long John Silver’s restaurant.

       On cross-examination, she testified that the defendant dated both
women at the same time. She said that the defendant called her on the night
of the victim’s death. She further stated that she was unable to hear the
conversation between the defendant and victim at the Long John Silver’s. On
redirect, she stated that she told the truth as best as she remembers.

       Next, the defendant testified on his own behalf. He said that he is
twenty-eight years old and that he and the victim have one child, Jacorey. He
said that he and the victim broke up and got back together often. He
acknowledged that he was seeing Andrea Vinson and the victim at the same
time. He said that the day before she died, he and the victim ate lunch at Long
John Silver’s. He said the victim dropped their child off at 11:00 a.m. on the
day of her death. He cut the child’s hair, gave him a bath, and fed him. He
then took the child to his grandmother’s house and borrowed her van. He said
that he went to get gas and to tell the victim he was going to take the child to
Jackson.

       When he arrived at the victim’s apartment, Christie Ball let him in
because the victim was in the bathroom. He said that the victim accused him
of trying to bring the child back and that she told him to get the child’s
belongings. He went out and got the car seat and bag. He said she continued
fussing at him and pushed him into the entertainment center. He said that she
kicked the door and hit him in the leg. He said she threw her cellular phone at

                                      -8-
him, but it missed and went out the door. He retrieved the phone and looked
through the numbers stored in it when he returned to his house. He said the
victim came over to retrieve the phone. He said he began to walk down the
street and, when he came close to the house, the victim arrived and they argued
for a few more minutes. He then took the child into the house, and the victim
drove away. He said he did not expect her to come back, but she returned in
thirty to thirty-five minutes. He said that they began arguing and that she hit
him in the head. He claimed that he pushed her into the dresser, where she
grabbed a knife. They continued to scuffle, and the victim stabbed him in the
arm. He said he then reached into the dresser and retrieved his handgun. He
said the victim threatened to kill him, he got off the bed, and then pushed and
shot the victim. He said that his intention was to shoot the victim but not to
kill her. The defendant said he then walked out and told his uncle Marvin
what had happened and told him to get the child. He said that he attempted to
flag down a car but was unsuccessful and went back into the house, got the
victim’s keys, and drove her car to the police department. He threw the gun in
the shrubbery and went inside. He claimed he was not trying to hide the gun,
but he was nervous. Once inside, he told an officer that “[his] baby’s mother
stabbed [him] and [he] shot her.” An ambulance took the defendant to the
hospital for treatment. He said that after his treatment, he was returned to the
jail where he gave a statement to the police of what had happened. He said
that the dresser drawer was not hard to pull out and that he did not close the
drawer. He said he recalled that in the second interview, the questioning
officer was trying to get him to admit that his arm was fully extended, but he
refused. He said that he did not make threatening phone calls to the victim.
Finally, he stated that it took eight stitches to close his stab wound.

        During cross-examination, the defendant testified that he shot the
victim. He said that the only wound he received was a stab wound to his upper
left biceps. He indicated that the knife penetrated approximately one inch into
his arm through a long-sleeved cotton shirt. He was treated and released from
the Humboldt Hospital Emergency Room. He claimed that the victim swiped
him across the face “like a mugging.” He denied that mugging is a sign of
disrespect in the African-American community. He said that he was able to
open the drawer with one hand. He said that the victim called him a “mother
f-ker” among other things and that she had the knife in her right hand and
“mugged” him with her left. He said that she stabbed him after he pushed her
away twice. He said that he did not think the victim would stab him. He also
said that he told the police that he did not know where he shot the victim. He
also could not explain how the drawer got closed. He did not call for help

                                      -9-
       when the victim reached for the knife. Finally, he said that at the time of the
       incident he and the victim were still carrying on a physical relationship.

               The State then recalled Lieutenant Baker for rebuttal testimony. On
       direct examination, he testified that the transcript to the defendant’s second
       statement was substantially correct. He said that he did not notice any blood
       on the bed when he inspected the crime scene. On cross-examination, he said
       that he did not recall a previous instance where the tape of an interview was
       lost in a murder case.

              Finally, the State called Sergeant Dennis Wright of the Humboldt Police
       Department. He said that he was present during Andrea Vinson’s interview.
       He said that Ms. Vinson stated in the interview that the defendant kept his gun
       in a bag under the bed.

             After deliberation, the jury returned a verdict of guilty for the charge of
       murder in the second degree. The court then set a sentencing hearing for
       December 20, 2004, at which time the court sentenced the defendant to serve
       twenty-years in the Department of Correction as a violent offender.

Id. at *1-7.

                                         ANALYSIS

        On appeal, the Petitioner argues that the post-conviction court violated his due process
rights by summarily dismissing his petition without following the requirements of the Post-
Conviction Procedure Act as specified in section 40-30-101, et. seq. In response, the State
acknowledges that the court erred in summarily dismissing the petition for post-conviction
relief but claims that the error stemmed from the post-conviction court’s failure to comply
with section 40-30-106(b) (2006).

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). The Tennessee Supreme Court has held:

       A post-conviction court’s findings of fact are conclusive on appeal unless the
       evidence preponderates otherwise. When reviewing factual issues, the
       appellate court will not re-weigh or re-evaluate the evidence; moreover, factual
       questions involving the credibility of witnesses or the weight of their testimony
       are matters for the trial court to resolve. The appellate court’s review of a

                                             -10-
       legal issue, or of a mixed question of law or fact such as a claim of ineffective
       assistance of counsel, is de novo with no presumption of correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901, n.3 (Tenn. 1992)), perm. to appeal
denied (Tenn. Nov. 2, 1998).

        The Post-Conviction Procedure Act states that a petition for post-conviction relief
“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.” T.C.A. § 40-30-106(d)
(2006). Bare allegations that a constitutional right has been violated and mere conclusions
of law will not be sufficient to warrant further proceedings. See id. Furthermore, the
petitioner’s “[f]ailure to state a factual basis for the grounds alleged shall result in immediate
dismissal of the petition.” Id. “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.” Id. In the event that an
amended petition is incomplete, the court shall determine whether the petitioner is indigent
and in need of counsel and may appoint counsel and enter a preliminary order if necessary
to secure the filing of a complete petition. Id. § 40-30-106(e) (2006). If the facts alleged in
the petition, 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 post-conviction
court shall dismiss the petition. See id. § 40-30-106(f) (2006). The order of dismissal shall
set forth the post-conviction court’s conclusions of law. See id. A post-conviction court
shall enter an order or a preliminary order within thirty (30) days of the filing of the petition
or amended petition. See id. § 40-30-106(a) (2006).

         In Burnett v. State, the Tennessee Supreme Court outlined the process that a post-
conviction court must follow in determining whether a petition for post-conviction relief
should be dismissed without a hearing. 92 S.W.3d 403, 406 (Tenn. 2002). First, the court
should review the petition to determine whether the petition asserts a colorable claim. Id.
A colorable claim is defined 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.’”
Id. (quoting Tenn. Sup. Ct. R. 28 § 2(H)). Accordingly, “[i]f 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



                                               -11-
claim, the petition shall be dismissed.” Id. (citing T.C.A. § 40-30-206(f)). Second, the post-
conviction court “may afford an indigent pro se petitioner the opportunity to have counsel
appointed and to amend the petition, if necessary.” Id. (citing T.C.A. § 40-30-207(b)(1)).
The Burnett court summarized the last step in the process:

               In the final stage of the process preceding an evidentiary hearing, the
       trial court reviews the entire record, including the petition, the State’s
       response, and any other files and records before it. If, on reviewing these
       documents, the court determines conclusively that the petitioner is not entitled
       to relief, the petition shall be dismissed. Tenn. Code Ann. § 40-30-209(a)
       (1997).

Id.

        When determining whether a colorable claim has been presented, pro se petitions are
held to a less rigid standard than formal pleadings drafted by attorneys. Allen v. State, 854
S.W.2d 873, 875 (Tenn. 1993) (citing Gable v. State, 836 S.W.2d 558, 559-60 (Tenn.
1992)). “If the availability of relief cannot be conclusively determined from a pro se petition
and the accompanying records, the petitioner must be given the aid of counsel.” Swanson
v. State, 749 S.W.2d 731, 734 (Tenn. 1988) (citing T.C.A. §§ 40-30-104, -107, -115).
However, “[w]here a petition conclusively shows that the petitioner is entitled to no relief,
it is properly dismissed without the appointment of counsel and without an evidentiary
hearing.” Givens v. State, 702 S.W.2d 578, 580 (Tenn. Crim. App. 1985) (citing T.C.A. §
40-30-109), perm. to appeal denied (Tenn. Sept. 30, 1985).

      The State contends that the post-conviction court summarily dismissed the petition
without making the factual findings required by section 40-30-106(b), which provides:

       If it plainly appears from the face of the petition, any annexed exhibits or the
       prior proceedings in the case that the petition was not filed in the court of
       conviction or within the time set forth in the statute of limitations, or that a
       prior petition was filed attacking the conviction and was resolved on the
       merits, the judge shall enter an order dismissing the petition. The order shall
       state the reason for the dismissal and the facts requiring dismissal. If the
       petition is dismissed as untimely, the order shall state or the record shall reflect
       the date of conviction, whether an appeal was taken, the name of each court
       to which an appeal was taken, the date of the final action by each appellate
       court, and the date upon which the petition was filed.




                                              -12-
T.C.A. § 40-30-106(b) (2006) (emphasis added). If the court’s dismissal was related to
issues concerning untimeliness or prior petitions resolved on the merits, then section 40-30-
106(b) would be relevant. Unfortunately, the record on appeal provides no explanation for
the post-conviction court’s summary dismissal of the petition. Instead, based on the record,
the post-conviction court appears to have summarily dismissed the petition after finding that
the Petitioner would not have been successful following an evidentiary hearing. We note that
“[t]he ultimate success or failure of a petitioner’s claims is not a proper basis for dismissing
a post-conviction petition without conducting an evidentiary hearing.” William Alexander
Cocke Stuart v. State, No. M2003-01387-CCA-R3-PC, 2004 WL 948390, at *3 (Tenn. Crim.
App., at Nashville, May 4, 2004) (citing Roosevelt Malone v. State, No. E2002-00782-CCA-
R3-PC, 2003 WL 21145488, at *2 (Tenn. Crim. App., at Knoxville, May 16, 2003); T.C.A.
§ 40-30-106(b) - (d)). Furthermore, there is no requirement that a petitioner prove his claims;
he must only allege a colorable claim in his petition. See Shazel v. State, 966 S.W.2d 414,
415-16 (Tenn. 1998) (“There obviously is an important distinction between the right to seek
relief in a post-conviction proceeding and the right to have relief in a post-conviction
proceeding.”). Usually, a petitioner is required to prove his claims by clear and convincing
evidence at an evidentiary hearing. See William Alexander Cocke Stuart, 2004 WL 948390,
at * 3. However, the Petitioner was not afforded a hearing on his claims in this case.

       Here, the Petitioner alleged in his post-conviction petition that his guilty plea was
involuntary, that he received ineffective assistance of counsel, and that the State failed to
disclose evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963).
Typically, all three of these claims are colorable grounds for post-conviction relief. The
Petitioner claims that “it [was] impossible for [him] to have intelligently made the choice of
accepting an Alford plea, when he was never informed by counsel of the actual consequences
of accepting the plea.” In addition, the Petitioner alleged that “had it not been for the
improper advice (parole in 3 to 4 years) made by counsel (Exhibit I) then he would have
insisted on going to trial.” The Petitioner also attached a January 29, 2009 letter from
defense counsel to his petition, in which counsel stated:

       As for the issue in your letter I did inform you that it would be a 15 year
       sentence at 100% which could be reduced to 85%. Based upon the time that
       you stated you had already served and had credit for plus your good time credit
       I told you that it sounded like you would be eligible for parole within 3 to 4
       years.

              If this is no longer your understanding of what will happen and you
       wish to try and undo the plea you entered into you will likely have to file a




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       post-conviction relief against me alleging that I did not adequately explain
       your plea to you and that it was not knowingly and voluntarily entered into.

     Accordingly, we conclude that the post-conviction court erred in summarily dismissing
the Petitioner’s claims. See Garry E. Collins v. State, No. 01C01-9603-CR-00120, 1997 WL
110016, at *1 (Tenn. Crim. App., at Nashville, Mar. 13, 1997).

        Finally, the Petitioner argues that the judge failed to be fair and impartial because he
“failed to follow the rules and statutes and issued the vague insufficient order dismissing
[his] petition.” Because of this alleged impartiality, the Petitioner requests that this court
disqualify the judge from any future involvement in his case. First, we note that adverse
rulings by a court are typically insufficient grounds to establish bias. Alley v. State, 882
S.W.2d 810, 821 (Tenn. Crim. App. 1994) (citing State v. Jimmy D. Dillingham, No.
03C01-9110-CR-319, 1993 WL 22155, at *5 (Tenn. Crim. App., at Knoxville, Feb. 3, 1993),
perm. to appeal denied (Tenn. July 6, 1993)). Furthermore, “[r]ulings of a trial judge, even
if erroneous, . . . do not, without more, justify disqualification.” Id. (citing Riva Ridge
Apartments v. Robert G. Fisher Co., 745 P.2d 1034, 1037 (Colo. App. 1987); Tackett v.
Jones, 575 So.2d 1123, 1124 (Ala. Civ. App. 1990); Band v. Livonia Associates, 439 N.W.2d
285, 296 (Mich. Ct. App. 1989)). After reviewing the record, we conclude that the post-
conviction court’s actions in this case do not require disqualification. The Petitioner is not
entitled to relief on this issue.

       Accordingly, we reverse the judgment of the post-conviction court and remand the
case for appointment of counsel and for an evidentiary hearing to consider the claims in the
Petitioner’s post-conviction petition.

                                      CONCLUSION

       Upon review, we reverse the judgment of the post-conviction court and remand for
further proceedings in accordance with the Post-Conviction Procedure Act.




                                                    ______________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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