             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                   AT KNOXVILLE                 FILED
                              MAY 1997 SESSION
                                                                    July 29, 1997

                                                                Cecil Crowson, Jr.
                                                                Appellate C ourt Clerk
EARL CRAWFORD, JR.,                )
                                   )
             Appellant,            )    No. 03C01-9610-CR-00385
                                   )
                                   )    Bradley County
v.                                 )
                                   )     Honorable Mayo L. Mashburn, Judge
                                   )
STATE OF TENNESSEE,                )     (Post-Conviction)
                                   )
             Appellee.             )


For the Appellant:                      For the Appellee:

Earl David Crawford, Jr., Pro Se        Charles W. Burson
TDOC #98108                             Attorney General of Tennessee
P.O. Box 279                                   and
 (AT TRIAL)                             Sandy R. Copous
                                        Assistant Attorney General of Tennessee
Kenneth F. Irvine, Jr.                  450 James Robertson Parkway
606 W. Main St., Suite 350              Nashville, TN 37243-0493
Knoxville, TN 37901-0084
  (ON APPEAL)                           Jerry N. Estes
                                        District Attorney General
                                        203 E. Madison Avenue
                                        Athens, TN 37303-0647




OPINION FILED:____________________


AFFIRMED

Joseph M. Tipton
Judge
                                              OPINION



              The petitioner, Earl Crawford, Jr., appeals as of right from the Bradley

County Criminal Court’s dismissal of his petition for post-conviction relief without the

appointment of counsel or the chance to amend the petition. He contends that the trial

court erred in dismissing the petition when it was incompetently drafted and that he was

entitled to counsel to amend the petition. We affirm the dismissal.



              The petitioner was convicted in 1986 of aggravated kidnapping,

aggravated rape and armed robbery for which he received two life sentences and a

thirty-five-year sentence. On June 28, 1989, the petitioner filed a pleading titled

“Petition For Post-Conviction Relief Filing To Be Held in Abeyance.” The pleading

states that the petitioner intended to file an “original petition for Post-Conviction Relief

subsequent to the filing of this petition.” In full, the supporting facts are as follows:

                      Petitioner is serving two life terms and a thirty five year
              term out of Bradley County, Criminal Court, and will file post-
              conviction petition as to the improper and illegal methods
              utilized by the state to secure said sentences against
              petitioner.

He also filed a motion seeking to proceed in forma pauperis in which he alleged that he

was unable to pay the cost of the action or to employ counsel.1 On August 10, 1989,

the state responded to the petition, asserting that the petitioner failed to show adequate

grounds for failing to file a petition within the prescribed statute of limitations and, in

fact, failed to file a timely petition before the limitation period expired on July 1, 1989.




              1
                  No ne of the pleadings filed at that tim e actu ally re quested the appointm ent of counsel.

                                                      2
From that point, the case appears to have been dormant until the state filed a motion in

May 1996 seeking to dismiss the petition for lack of prosecution.2



                 The trial court dismissed the original petition in June 1996 with prejudice

for failure to prosecute. Also in June, the petitioner filed a “Motion for New Trial and the

Alternative Notice of Appeal” attaching a petition for post-conviction relief that alleged

the ineffective assistance of counsel and an unconstitutional reasonable doubt jury

instruction. The trial court denied the motion, reaffirming the original dismissal.



                 The petitioner asserts that if counsel had been appointed at the time that

his petition was filed, his claims could have been litigated years ago. He also contends

that the trial court could not dismiss his incompetently drafted petition without giving him

the reasonable opportunity, with the aid of counsel, to file an amendment. See T.C.A. §

40-30-115(b) (repealed 1995). He concludes with the statement that summary

dismissal of post-conviction claims are disfavored by the Tennessee courts.



                 Without going into detail, we agree with the basic principles of post-

conviction law upon which the petitioner relies. However, as the Tennessee Supreme

Court has noted, the prerequisite to the panoply of rights and protections that

Tennessee statutes provide for post-conviction petitioners is that the pro se petition

must allege a colorable claim.

                        This Court has previously held that a pro se petition
                 under the Act is “held to less stringent standards than formal
                 pleadings drafted by lawyers, and the test is whether it appears
                 beyond doubt that the [petitioner] can prove no set of facts in


                  2
                    The record indicates that the petitioner filed a petition for writ of habeas corpus in May
1991 which the trial court treated as a petition for post-conviction relief. The trial court dismissed the
petition as time barred in July 1991. The record also reflects that under that case’s docket number, the
trial court entered an order in August 1992 relative to the petitioner’s June 1992 motion to ascertain the
status of pleading in which he m entions his initial petition to be held in abeyance. The trial court
“dismissed” the motion noting that the petitioner “was apparently under the impression that such a motion
would have the effect of tolling the running of the statute of limitations on any subsequently filed petition
for post conviction relief” and that the May 1991 habeas corpus / post-conviction petition was denied. The
record also indicates that the petitioner filed a petition for habeas c orpus relief in federal court in Janua ry
1996.

                                                        3
              support of his claim which would entitled him to relief.” Baxter
              v. Rose, 523 S.W.2d 930, 939 (Tenn. 1975) (citation omitted).
              Furthermore, when a colorable claim is presented in a pro se
              petition, dismissal without appointment of counsel to draft a
              competent petition is rarely proper. Id. See also Mayes v.
              State, 671 S.W.2d 857, 858 (Tenn. Crim. App. 1984). 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). In State v. Smith, 814 S.W.2d

45, 49 (Tenn. 1991), our supreme court stated that a colorable claim is one that alleges

facts showing that the conviction or sentence resulted from an abridgement of a

constitutional right and demonstrating that the ground for relief was not previously

determined or waived. Under this standard, we believe that the petitioner’s allegation

that his convictions and sentences were obtained by “improper and illegal methods

utilized by the state” fails to state even conclusory constitutional violations, much less a

colorable claim.



              In fact, it is reasonable to conclude that the petition is what it is titled -- a

request to hold his filing of a post-conviction petition in abeyance, not a post-conviction

petition itself. Absent very limited reasons, none of which are presented in this case,

the petitioner was not entitled to toll the statute of limitations. In any event, his petition

alleged nothing of consequence. The judgment of the trial court is affirmed.



                                                   ______________________________
                                                   Joseph M. Tipton, Judge

CONCUR:



___________________________
Joe B. Jones, Presiding Judge



___________________________
Curwood Witt, Judge




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