        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                         FEBRUARY SESS ION, 1999         May 19, 1999

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

BOBBY ALLEN JOYNER,               )   C.C.A. NO. 03C01-9807-CR-00260
                                  )
           Appe llant,            )
                                  )   SULLIVAN COUNTY
V.                                )
                                  )
                                  )   HON. LYNN W. BROWN, JUDGE
STATE OF TE NNE SSE E,            )
                                  )
           Appellee.              )   (POST-CONVICTION)



FOR THE APPELLANT:                    FOR THE APPELLEE:

BOB BY AL LEN JOYN ER, pro se         JOHN KNOX WALKUP
N.E.C.C. #114016                      Attorney General & Reporter
P.O. Box 5000
Mountain City, TN 37683               ELLEN H. POLLACK
                                      Assistant Attorney General
                                      2nd Floor, Cordell Hull Building
                                      425 Fifth Avenue North
                                      Nashville, TN 37243

                                      H. GREELEY WELLS, JR.
                                      District Attorney General
                                      140 Blountville Bypass
                                      P.O. Box 526
                                      Blountville, TN 37617-0526




OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                     OPINION
       The Petitioner, B obby A llen Joyne r, appea ls as of right the trial c ourt’s

dismissal of his petition for post-co nviction relief. After a careful review of the record,

we affirm the judgm ent of the tria l court.



       On December 17, 1992, Petitioner was convicted of first degree murder and

sentenced to life imprisonment.        Petitioner appealed and this Court affirmed the

judgment of the trial court. See State v. Bobby Allen Joyner, C.C.A. No. 03C01-

9411-CR-00412, Sullivan County (Tenn. Crim. App. Knoxville, Jan. 29, 1996), perm.

to appeal denied (Tenn. 1996). O n June 20, 199 7, Petitione r filed a petition for post-

conviction relief which was subsequently dismissed without an evidentiary hearing.

Petitione r filed a time ly notice of a ppeal.



                                    I. Exculpatory Evidence



       First, Petitioner asserts in his petition that the State fa iled to d isclose favora ble

evidence to him. The evidence he claims is exculpatory is a State witness’s alleged

prior criminal record and the fact that the State did not disclose to him that

Petition er’s defense counsel had previously represented a witness for the State.

Petitioner did not raise the issu e conc erning th e prior crim inal record of a State

witness on direct a ppeal. W e agree with the trial court’s order stating that the

“dismissal of this allega tion is warra nted be cause no facts are stated to support the

bare allegations of the [P]etitioner.” See Tenn . Sup. C t. R. 28,

§ 5(E)(4 ), § 5(F )(3), an d § 6(B )(4)(c). P etitioner does not state whose criminal

record was not divulged, what convictions it would have revealed, and even whether

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the State had this witness’s criminal record in its pos sess ion. Th e Petitio ner did

raise the issue abo ut his counse l’s prior representation of a State witness , Robert

McD owell. How ever, h e cou ched it in terms of an ine ffective assistance of counsel

claim, and this Court found that although Petitioner’s defense counsel “had

represented McD owell in a previo us ca se, the re was no sh owing of a co nflict of

interest or that this prevented the [Petitioner] from rec eiving a fair trial.” We find that

although this issu e was raised in a diffe rent co ntext, P etitione r shou ld have also

presented on direct appeal the sp ecific issue he now raises. Therefore, it has been

waived. See Tenn . Code Ann. § 4 0-30-20 6(g) and -210(f).



                                  II. Double Jeopardy



       Petitioner argues that the jury heard evidence of his prior criminal record and

that because he had already been punished for thos e crim es, it co nstitute d dou ble

jeopardy. The u se of th e evide nce in no wa y cons tituted double jeopardy, and

therefore, we do n ot find this issue p roper for pos t-conv iction co nside ration a s it

does not state the deprivation of any co nstitutiona l right. See Tenn. Code Ann. § 40-

30-203.



                         III. Unconstitutionally Selecte d Jury



       Petitioner asserts in this issue that “[m]any jurors had conflict(s) of interest

against the defen dant.” Specifically, he mentions that one juror was a friend of the

district attorney, some jurors were victims of crimes themselves, and another juror

was a friend and business associate of a judge. Petitioner did not raise this on direct

appe al, and therefore the issue is waived. See Tenn. Code Ann. § 40-30-206(g) and

                                            -3-
-210(f). Also, we do not find this issue proper for post-conviction consideration

because the facts alleged do not constitute the dep rivation of an y constitutio nal right.

See Tenn. Code Ann. § 40-30-203.



                              IV. Assistance of Counsel



       Petitioner makes numerous claims in this issue that his trial counsel was

ineffective. Althoug h Petitione r did not rais e som e of the sp ecific facts now raised,

he did make the general claim of ineffective assistance of counsel on direct appeal

and this Court determ ined it to be without m erit. We no te that while ineffective

assistance of coun sel claim s ma y be rais ed on direct a ppea l mere ly on the record,

such a practice is “fraught with peril.” See, e.g., Thom pson v. S tate, 958 S.W.2d

156, 161 (T enn. C rim. App .), perm. to appeal denied (Tenn. 1997). Generally, the

practice is disfavored because steps are not taken to prepare an adequate re cord

on the issue in the trial court. Raising the issue on direct appeal is a risk assumed

by Petitioner and h is couns el, but it does not ma ke this C ourt’s actio n any less of a

ruling on the me rits after a review of the record before it. Petitioner was allowed the

opportu nity to present the issue of ineffective assistance of counsel on dire ct app eal,

and therefo re, this c laim has been p reviou sly dete rmine d and is not co gniza ble in

this petition. See Tenn . Code Ann. § 4 0-30-20 6(h).




                                   V. Illegal Evidence



       Petitioner asserts th at an “[o]ld p hoto I.D. card [of him] was illegally introduced

to the jury.” We agree w ith the cou rt’s finding tha t this is not an issue for p ost-

                                            -4-
conviction relief sin ce it is not an ab ridgme nt of any co nstitutiona l right. See Tenn.

Code Ann. § 40-30-203. Furthermore, this issue was not raised on direct appeal and

has the refore be en waive d. See Tenn. C ode Ann . § 40-30-206 (g) and -210(f).



                                    VI. Other Grounds



       Finally, Petitioner alleges “[p]rejudicial plain errors of the trial court, such as

refusing to allow coun sel to withdraw, refusin g to allow a continu ance to sec ure

certain defense witnesses, failing to properly instruct the jury on 1st [sic] degree

murd er’s premeditation and deliberation essential elements, amon gst other things.”

Petitioner states no other facts and we agree with the trial court that no constitutional

deprivation exists by couns el not bein g allowed to withdraw as allege d. See Tenn.

Code Ann. § 40-30-203. Furthermore, this issue should have been raised on direct

appe al. Tenn . Code Ann. § 40-30-206(g) and -210(f). The issues of a continuance

and jury instructions were de cided ag ainst Pe titioner on d irect appe al. See Tenn.

Code Ann. § 40-30-206(h). The issue regarding jury instructions could have been

raised on direct appeal, and is waived.



       Since we are able to determine conclusively from Petitioner’s pro se petition

that no relie f is availa ble, it wa s not e rror for th e trial court to dismiss the petition

without an evidentiary hea ring and withou t the appointm ent of counse l for Petitioner.

See Swan son v. Sta te, 749 S.W .2d 731 (Te nn. 1988).



                                    ____________________________________
                                    THOMAS T. W OODALL, Judge




                                             -5-
CONCUR:



___________________________________
JERRY L. SMITH, Judge

___________________________________
L. T. LAFFERTY, Senior Judge




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