        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs January 6, 2015

            MARTRELL HOLLOWAY v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
          Nos. 12-05320; 12-05321; 12-05322   J. Robert Carter, Jr., Judge


                No. W2014-00836-CCA-R3-PC - Filed January 9, 2015


Petitioner, Martrell Holloway, appeals the summary dismissal of his second petition for post-
conviction relief, which was filed during the statute of limitations period but after he
previously withdrew his first petition before an evidentiary hearing was held. The post-
conviction court concluded that petitioner had waived the claims because they were the same
as those contained in the first petition. In its brief, the State conceded that the post-
conviction court committed reversible error in doing so. Following our review, we conclude
that the doctrine of waiver does not preclude petitioner from seeking post-conviction relief
in this subsequent petition and reverse the judgment of the post-conviction court.

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

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

Martrell Holloway, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; and
Amy P. Weirich, District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        Petitioner argues that the post-conviction court erred by summarily dismissing his
second petition for post-conviction relief on the basis that it contained the same allegations
as the first petition. The State concedes that the post-conviction court erred by applying the
doctrine of waiver to petitioner’s case because petitioner filed his second petition within the
statute of limitations and because the claims in petitioner’s first petition had not been
adjudicated at a hearing. We agree.
                                     I. Procedural History

        The record reflects that on April 29, 2013, petitioner entered guilty pleas to two counts
of especially aggravated kidnapping, one count of especially aggravated robbery, and three
counts of aggravated robbery, for which he received an effective eighteen-year sentence.
Thereafter, he filed a timely petition for post-conviction relief in September 2013, for which
the post-conviction court appointed counsel. Petitioner subsequently withdrew his petition
for relief on November 15, 2013, prior to an evidentiary hearing being conducted.

       Petitioner filed a second, but still timely, petition for post-conviction relief on March
20, 2014, alleging nine specific instances of ineffective assistance of counsel. The post-
conviction court summarily dismissed the petition, stating that “[t]he grounds contained in
the new [p]etition are essentially the same as the grounds in his original [p]etition and are,
therefore, waived.” The court further noted, “No reason has been given for simply refiling
his [p]etition.” It is from this order of dismissal that petitioner now appeals.

                                          II. Analysis

        Following a judgment of conviction, a petitioner may pursue relief from his conviction
and/or sentence by demonstrating that his or her “conviction or sentence is void or voidable
because of the abridgement of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” Tenn. Code Ann. § 40-30-103. As it relates to this case,
“a person in custody under a sentence of a court of this state must petition for post-conviction
relief under this part . . . within one (1) year of the date on which the judgment became final,
or consideration of the petition shall be barred.” Id. § 40-30-102(a). A “petitioner may
withdraw a petition at any time prior to the hearing without prejudice to any rights to refile,
but the withdrawn petition shall not toll the statute of limitations set forth in § 40-30-102.”
Id. § 40-30-109(c) (emphasis added); see also id. § 40-30-102(c) (“If 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.” (emphasis added)).

        In this case, after voluntarily withdrawing his first petition for relief, petitioner filed
a timely second petition for post-conviction relief. The second petition did not run afoul of
the statute of limitations. Moreover, the allegations contained in his first petition were not
resolved on the merits in a hearing. Thus, the first petition was withdrawn without prejudice
to petitioner’s right to refile.

       With respect to waiver of a second petition for post-conviction relief, our supreme
court has stated “that waiver under the post-conviction statute does not occur until there has
been a hearing on the merits and the issues raised in the petition have been ‘adjudicated.’”

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Williams v. State, 831 S.W.2d 281, 282 (Tenn. 1992); see Albert v. State, 813 S.W.2d 426,
428 (Tenn. 1991) (holding that when a petition is voluntarily withdrawn before an
evidentiary hearing, a finding of waiver was improper because there had been “no proceeding
before a court at which the grounds alleged could have been presented”). In this case, the
doctrine of waiver does not bar petitioner’s second timely-filed petition for post-conviction
relief. Accordingly, we reverse the judgment of the post-conviction court.

                                     CONCLUSION

       Based on our review of the record, the briefs of the parties, and the applicable legal
authorities, we reverse the judgment of the post-conviction court and remand for further
proceedings consistent with this opinion.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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