        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 19, 2015

            DERRICK RICHARDSON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Hamilton County
                      No. 207115 Barry A. Steelman, Judge


                 No. E2014-01554-CCA-R3-PC - Filed March 20, 2015


The Petitioner, Derrick Richardson, appeals the Hamilton County Criminal Court’s denial
of his two motions to reopen his post-conviction proceedings relative to his first degree
felony murder conviction and resulting life sentence. The Petitioner contends that the post-
conviction court erred by denying his motions. We dismiss the 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 post-conviction proceedings.

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

R OBERT H. M ONTGOMERY, J R., J., delivered the opinion of the court, in which N ORMA
M CG EE O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

Derrick Richardson, Pikeville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant
Attorney General; and William H. Cox III, District Attorney General, for the appellee, State
of Tennessee.

                                        OPINION

      The facts underlying the Petitioner’s conviction were summarized by this court in a
previous appeal.

       In the early morning hours of December 8, 1993, the defendant, Gregory
       Strong, Stanley Gillespie, and Calvin Johnson were at or near the Heaton
       Street residence of LaKeysh Davis, the mother of Johnson’s son. Apparently
       upset because Davis’ husband had been shot only a short while earlier, all of
       the men were armed with guns. The victim, Louie Dwight, stopped his
       vehicle, approached the defendant and Strong as they stood on the side of the
       street, and asked to buy drugs. The defendant, armed with a .38 pistol, and
       Strong, carrying a pump shotgun, fired several shots, took the victim’s money,
       and threw his wallet on the ground.

              Johnson testified that he and Gillespie heard the shooting and
       approached the scene. Johnson carried an AK47 assault rifle and Gillespie had
       a .380 pistol. Each fired shots. Either the defendant or Stanley Gillespie, or
       both, shot the victim in the legs. The victim got into his vehicle to leave,
       stopped, and returned to retrieve his wallet. He then drove away. After a short
       distance, however, the victim lost consciousness and wrecked. He died due to
       multiple gunshot wounds to his legs.

               The Hamilton County Medical Examiner testified that the victim was
       struck by three bullets; there were two wounds in the right leg. A shot to the
       left leg pierced its main artery. All shots that struck the [victim] were fired by
       low velocity weapons: a .38 or a .380.

               Ms. Davis stated that the defendant, Gillespie, and Strong participated
       in the robbery. She testified that the defendant held his weapon on the victim,
       took his wallet, and shot him in the leg. Strong testified that he and the
       defendant never had any kind of agreement to rob the victim and blamed the
       defendant for that offense. During the pretrial investigation, Strong stated that
       the defendant had shot at the victim’s legs; at trial, he said he did not know
       who fired the shots that actually struck the victim.

               The defendant, who told officers he fired his weapon twice, admitted
       having shot at the victim’s truck but denied shooting the victim. While
       conceding that the victim handed him the wallet, the defendant testified that
       Strong took the money and was responsible for the robbery. At that point, he
       said, Johnson and Gillespie arrived. The defendant claimed Johnson shot at
       the victim’s truck while Gillespie fired the fatal shots.

State v. Derrick Richardson, No. 03C01-9305-CR-00165, 1994 WL 247114, at *1 (Tenn.
Crim. App. June 9, 1994), perm. app. denied (Tenn. Sept. 12, 1994).

       On July 20, 1995, the Petitioner filed a petition for post-conviction relief alleging the
ineffective assistance of counsel. The post-conviction court denied relief, and this court
affirmed the denial. See Derrick Richardson v. State, No. 03C01-9605-CR-00186, 1998 WL
18199 (Tenn. Crim. App. Jan. 21, 1998), perm. app. denied (Tenn. June 8, 1998).

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       On July 18, 2002, the Petitioner filed a motion to reopen the post-conviction
proceedings pursuant to Gilliam v. State, 901 S.W.2d 385 (Tenn. Crim. App. 1995), and State
v. Howard, 30 S.W.3d 271 (Tenn. 2000), alleging that new scientific evidence existed.
However, in his explanation of the new scientific evidence, he stated that the jury was
improperly instructed relative to the lesser included offenses of first degree felony murder
and that had the jury been instructed properly, he would not have received a life sentence.

       The post-conviction court’s September 20, 2002 order treated the Petitioner’s motion
“as an attempt to state another claim for relief on the ground of a new and retrospective
constitutional right.” The court noted that the time limit for filing a motion to reopen post-
conviction proceedings was one year from the decision of the highest state appellate court
or the United States Supreme Court establishing a new constitutional right pursuant to
Tennessee Code Annotated section 40-30-217(a)(1) and that the Petitioner failed to file his
motion within one year of Gilliam or Howard. The court found that the Petitioner’s motion
was untimely and stated that the Petitioner had ten days to file an application for permission
to appeal to this court.

        The Petitioner filed an application for permission to appeal to this court on November
15, 2002, which was beyond the ten-day filing period. See Derrick Richardson v. State, No.
E2002-02747-CCA-R28-PC (Tenn. Crim. App. Mar. 11, 2003) (order). Although this court
noted the untimely filing and the Petitioner’s failing to attach the motion to reopen to his
application for permission to appeal, it considered the Petitioner’s application on its merits.
This court concluded that the post-conviction court did not abuse its discretion by denying
the motion to reopen and noted that Gilliam and Howard did not create a new constitutional
right entitled to retrospective application. Id. This court also concluded that the Petitioner
failed to show he was entitled to reopen his post-conviction proceedings and denied his
application for permission to appeal. Id.

       On January 5, 2005, the Petitioner filed a petition for a writ of habeas corpus alleging
his judgment was void for various reasons, including that the trial court erroneously
instructed the jury on first and second degree murder and on the natural and probable
consequences rule. See Derrick Richardson v. Virginia Lewis, Warden and State, No.
E2005-00817-CCA-R3-HC, 2006 WL 3479530, at *1 (Tenn. Crim. App. Dec. 1, 2006). The
habeas corpus court dismissed the petition, in relevant part, for failure to state a cognizable
claim and stated that the petition could not be treated as a petition for post-conviction relief
because of the untimely filing and because the Petitioner had previously sought post-
conviction relief. Id. On appeal, this court concluded that the Petitioner had failed to state
a claim for which habeas corpus relief was warranted, that the habeas corpus court properly
found that the petition was time-barred relative to post-conviction relief, and that he had
previously filed a post-conviction petition. Id. at *2.

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        On February 24, 2014, the Petitioner filed a subsequent motion to reopen his post-
conviction proceedings alleging that Trevino v. Thaler, — U.S. —, 133 S.Ct. 1911 (2013),
and Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309 (2012), established a new constitutional
right not recognized as existing at the time of his trial. He argued Trevino and Martinez
permitted him to reopen his post-conviction proceedings because post-conviction counsel’s
ineffectiveness at the evidentiary hearing did not result in a waiver of issues counsel failed
to raise. He claimed that post-conviction counsel was ineffective by failing to subpoena
witnesses to the evidentiary hearing and by failing to raise on appeal the post-conviction
court’s failure to comply with the written order requirement in Code section 40-30-111(b).
He also argued his conviction was based on “an unconstitutionally influenced grand jury.”

        The post-conviction court filed a preliminary order on March 14, 2014. We note that
the order states two pending motions to reopen the post-conviction proceedings were before
the court. Although the appellate record only contains the Petitioner’s February 24, 2014
motion to reopen, the post-conviction court’s order reflects that the Petitioner also filed a
motion to reopen on November 5, 2009. We glean from the court’s order that the Petitioner’s
November 5, 2009 motion sought to reopen the proceedings on the grounds that the trial
judge erroneously denied his request for special jury instructions, that Ms. Davis was willing
to recant her trial testimony, and that her willingness to recant was “new, scientific evidence
of his innocence.” According to the court’s order, this 2009 motion was not docketed and
resolved, and the court discovered the motion after the Petitioner filed his 2014 motion to
reopen.

       Relative to the Petitioner’s 2009 motion to reopen, the post-conviction court noted that
the jury instruction allegation was previously raised in the appeal of the Petitioner’s
conviction and that no affidavit in support of Ms. Davis’s willingness to recant her trial
testimony was included in the motion. The court found that the motion failed to state a
ground constituting new scientific evidence and that the Petitioner was not entitled to reopen
his post-conviction petition. The court, though, treated the motion as a petition for a writ of
error coram nobis as related to Ms. Davis’s willingness to recant and ordered the Petitioner
to submit Ms. Davis’s executed affidavit within sixty days.

       Relative to the Petitioner’s 2014 motion to reopen, the post-conviction court relied on
Frazier v. State, 303 S.W.3d 674, 680-85 (Tenn. 2010), in finding that Tennessee had yet to
recognize a constitutional right to the effective assistance of post-conviction counsel. The
court stated that the motion should have been denied but withheld judgment until the court
decided whether to treat the 2009 motion as a petition for a writ of error coram nobis.




                                              -4-
       On April 21, 2014, the Petitioner filed his response to the post-conviction’s court
preliminary order. The Petitioner contended that the court wrongfully denied him relief on
the motions. Relative to Ms. Davis’s affidavit, the Petitioner attached an unexecuted
affidavit, claimed the unexecuted affidavit was all he could find “at this time,” and expressed
his contempt for the court’s ignoring the 2009 motion for five years and only providing him
sixty days to obtain an executed affidavit. The Petitioner requested the appointment of
counsel and an evidentiary hearing on both motions to reopen.

        On July 11, 2014, the post-conviction court entered an order denying the 2009 and the
2014 motions to reopen. Relative to the 2009 motion, the court found that the Petitioner
failed to file an executed affidavit from Ms. Davis and that the Petitioner failed to request
additional time to comply with the court’s preliminary order. As a result, the court found that
there was no need to treat the motion as a petition for a writ of error coram nobis. Relative
to the 2014 motion, the court found that the Petitioner was not entitled to reopen his post-
conviction proceedings because the case law relied upon by the Petitioner applied to federal
habeas corpus proceedings. This appeal followed.

        The Petitioner contends that the post-conviction court erred by denying his motions
to reopen his post-conviction proceedings. He argues that Trevino and Martinez permit him
to reopen the proceedings because post-conviction counsel provided ineffective assistance
by failing to subpoena and present a witness at the post-conviction evidentiary hearing, by
failing to raise issues related to an unconstitutionally influenced grand jury, and by failing
to raise on appeal the post-conviction court’s failure to enter a written order in compliance
with Code section 40-30-111(b). He also argues the newly discovered evidence of Ms.
Davis’s willingness to recant her trial testimony entitles him to an evidentiary hearing. The
State responds that the appeal should be dismissed for failure to file an application for
permission to appeal the post-conviction court’s denial of relief. In the alternative, the State
contends the Petitioner has failed to establish that a new constitutional right was created after
his trial and that the right requires retrospective application.

         A petitioner may seek appellate review of a post-conviction court’s denial of a motion
to reopen post-conviction proceedings by filing within thirty days an application for
permission to appeal to the court of criminal appeals. T.C.A. § 40-30-117(c) (2012); see
Tenn. Sup. Ct. R. 28 § 10(B). The application for permission to appeal shall include “copies
of all the documents filed by both parties in the [post-conviction] court and the order denying
the motion.” T.C.A. § 40-30-117(c); see Tenn. Sup. Ct. R. 28 § 10(B). An appeal in this
regard is discretionary, and a petitioner is not entitled to an appeal as of right. Fletcher v.
State, 951 S.W.2d 378, 382 (Tenn. 1997); see T.R.A.P. 3(b) (delineating the availability of
an appeal as of right in criminal proceedings).



                                               -5-
       Although a notice of appeal filed with the court of criminal appeals may be treated as
an application for permission to appeal, the notice “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.” Graham v. State, 90 S.W.3d 687, 691
(Tenn. 2002). A petitioner’s failure to comply with the requirements of Tennessee Code
Annotated section 40-30-117(c) “deprives this court of jurisdiction to consider the matter.”
Ricky Lee Nelson a/k/a Russell Wellington v. State, No. W2012-00045-CCA-R3-PC, 2013
WL 1197870, at *3 (Tenn. Crim. App. Mar. 25, 2013); see Salvatore Pisano, Jr. v. State, No.
W2011-02535-CCA-R3-PC, 2012 WL 5507328, at *3 (Tenn. Crim. App. Nov. 13, 2012);
Eric Carter v. State, No. W2008-00957-CCA-R3-PC, 2008 WL 4936719, at *2 (Tenn. Crim.
App. Nov. 19, 2008); Timothy Roberson v. State, No. W2007-00230-CCA-R3-PC, 2007 WL
3286681, at *9 (Tenn. Crim. App. Nov. 7, 2007), perm. app. denied (Tenn. Apr. 14, 2008).

       The record reflects that after the post-conviction court denied the Petitioner’s motions
to reopen his post-conviction proceedings, the Petitioner filed a notice of appeal with the
clerk of the post-conviction court. The Petitioner did not file with this court an application
for permission to appeal or a notice of appeal satisfying any of the Graham requirements.
As a result, the Petitioner has failed to comply with the requirements of Code section 40-30-
117(c). The Petitioner’s filing a generic notice of appeal with the clerk of the post-
conviction court and his failure to file an application for permission to appeal with the court
of criminal appeals deprive this court of jurisdiction to consider the Petitioner’s appeal.

       Based on the foregoing, the appeal is dismissed.




                                           ____________________________________
                                           ROBERT H. MONTGOMERY, JR., JUDGE




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