        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs April 26, 2011

          CHARLES E. SHIFFLETT, SR. v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Sullivan County
                         No. C57,206 R. Jerry Beck, Judge




                   No. E2010-01551-CCA-R3-PC - Filed July 14, 2011


In October 2009, the Petitioner, Charles E. Shifflett, Sr., filed a petition for post-conviction
relief challenging his convictions for first degree murder and robbery. The Petitioner alleged
nine grounds of ineffective assistance of trial counsel and three grounds of prosecutorial
misconduct at trial. The post-conviction court summarily dismissed the petition, finding that
some of the issues had been raised on direct appeal, and that other allegations were
conclusory and failed to sufficiently allege prejudice. Following our review of the record,
we reverse the judgment of the Sullivan County Criminal Court and remand for further
proceedings.


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

D AVID H. W ELLES S P. J., delivered the opinion of the Court, in which T HOMAS T. W OODALL
and J OHN E VERETT W ILLIAMS, JJ., joined.

C. Brad Sproules, Kingsport, Tennessee, for the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel; H.
Greeley Wells, District Attorney General, Blountville, Tennessee; and Barry Staubus,
Assistant District Attorney General, for the appellee, State of Tennessee.
                                          OPINION

                                    Factual Background

       On March 18, 2006, a jury convicted the Petitioner of first degree premeditated
murder, first degree murder in the perpetration of a felony, and robbery. The two murder
convictions were merged, and the trial court imposed a life sentence for the first degree
murder conviction and a concurrent three-year sentence for the robbery conviction. See State
v. Charles E. Shifflett, Sr., No. E2006-02162-CCA-R3-CD, 2008 WL 1813106 (Tenn. Crim.
App., Nashville, Apr. 23, 2008). On appeal, this Court affirmed the convictions and
sentences, and our supreme court denied the Petitioner’s application for permission to appeal.

       The Petitioner timely filed a petition for post-conviction relief, raising nine claims of
ineffective assistance of trial counsel and three claims of prosecutorial misconduct. The
Petitioner claimed that counsel failed to keep him informed about the status of his case, failed
to properly investigate legal and factual issues surrounding the suppression of his statement,
was unprepared at the suppression hearing, failed to request expert witnesses to counter the
State’s expert witnesses, failed to object to leading questions of a witness, failed to object
when a State’s witness was coached with prior testimony, failed to object to the introduction
of the interview tape that had been partially destroyed, failed to object to selective
prosecution by the State, and failed to object to improper bolstering by the State during its
closing arguments. Specifically, as to the claims of counsel’s preparedness at the suppression
hearing and counsel’s failure to request expert witnesses, the Petitioner claimed as follows:

              3. Counsel was unprepared at the suppression hearing and upon inquiry
       by the Court as to what part or parts of the [Petitioner’s] interview were
       objectionable, counsel was unprepared to cite the appropriate portions of the
       record. (Trial Transcripts, [hereinafter referred to as “TR”], pgs. 123-125 &
       129-130). As a result of counsel’s lack of preparation, counsel effectively
       waived the argument that my pre-trial statements should have been suppressed.

              4. Counsel failed to move for an expert witness to assist him in the
       preparation of my case. As a result, counsel was not prepared to properly
       cross-examine, or impeach the testimony of, the State’s expert witness in
       forensic pathology, TR, pgs. 369-376, or the State’s Arson investigator. TR,
       pgs. 421-427. Both experts [sic] testimony went virtually unchallenged. The
       Arson investigator testified that the fire in the motorhome was intentionally
       set. TR., 427, [sic] He also testified about taking samples, TR., pg. 424, but
       never testified about the results. The Arson expert’s damaging testimony went

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       virtually unchallenged. TR., pgs. 429-435. Had counsel enlisted the aid of an
       expert he would have been better prepared to cross-examine and impeach the
       testimony of the State’s experts. Because counsel was unprepared to properly
       challenge the State’s expert witnesses, I was denied my right to an adversarial
       proceeding in which the State’s evidence was put to the test.

        In a written order summarily dismissing the petition, the post-conviction court found
that certain allegations had been raised on direct appeal and that other allegations were
conclusory and failed to allege prejudice. However, due to a typographical error by the post-
conviction court in which an incorrect inmate number was placed on the copy of the order
sent to the Petitioner, the Petitioner did not receive the court’s order of dismissal. When the
Petitioner subsequently filed a motion to amend his post-conviction petition, the error was
brought to the post-conviction court’s attention. Finding that the Petitioner had been denied
his right of appeal, the post-conviction court granted a delayed appeal on due process
grounds and denied the motion to amend the petition for post-conviction relief.

                                           Analysis

       On appeal, the Petitioner argues that the summary dismissal of his petition was error
and repeats his nine claims of ineffective assistance of counsel in addition to the
prosecutorial misconduct claims. The State counters that the post-conviction court properly
dismissed the petition because the Petitioner failed to “explain the legal analysis required and
the legal basis for relief.”

      Review of a post-conviction court’s summary dismissal of a petition for post-
conviction relief presents a question of law this Court reviews de novo. See Arnold v. State,
143 S.W.3d 784, 786 (Tenn. 2004) (citing Burnett v. State, 92 S.W.3d 403, 406 (Tenn.
2002)); see also Fields v. State, 40 S.W.3d 450, 457 (Tenn. 2001).

       Tennessee Code Annotated section 40-30-106(d) sets out certain requirements for
petitions for post-conviction relief and permits a post-conviction court to dismiss inadequate
petitions or allow pro se petitioners an opportunity to amend:

       The petition 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. A bare allegation that a constitutional right has been violated and
       mere conclusions of law shall not be sufficient to warrant any further
       proceedings. Failure to state a factual basis for the grounds alleged shall result
       in immediate dismissal of the petition. If, however, the petition was filed pro
       se, the judge may enter an order stating that the petitioner must file an

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       amended petition that complies with this section within fifteen (15) days or the
       petition will be dismissed.

Tenn. Code Ann. § 40-30-106(d).

       The Rules of the Tennessee Supreme Court clarify that a post-conviction court’s first
obligation upon receipt of a petition is to review it in order to determine whether it states a
colorable claim and, if so, to issue a preliminary order that, among other things, appoints
counsel for indigent petitioners and sets a deadline for the filing of an amended petition. See
Tenn. Sup. Ct. R. 28, § 6(B)(2)-(3). Accordingly, whether it is appropriate for a court to
summarily dismiss a petition for post-conviction relief without allowing a petitioner the
opportunity to amend or appointing counsel depends on whether the petition states a
colorable claim. See id.; see also Arnold, 143 S.W.3d at 786-87.

        Whether a petition states a colorable claim depends on the facts alleged. See Arnold,
143 S.W.3d at 786; Burnett, 92 S.W.3d at 406-07. “A colorable claim is one ‘that, if taken
as true, in the light most favorable to the petitioner, would entitle the petitioner to relief under
the Post-Conviction Procedure Act.’” Arnold, 143 S.W.3d at 786 (quoting Tenn. Sup. Ct. R.
28, § 2(H)). As such, “if 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 claim, the petition shall be
dismissed.” Burnett, 92 S.W.3d at 406 (citing Tenn. Code Ann. § 40-30-206(f) (1997)). In
addition, in determining whether a colorable claim has been presented, “pro se petitions are
to be ‘held to less stringent standards than formal pleadings drafted by lawyers.’” Gable v.
State, 836 S.W.2d 558, 559-60 (Tenn. 1992) (quoting Swanson v. State, 749 S.W.2d 731,
734 (Tenn. 1988)).

        We must construe the petition in the light most favorable to the Petitioner. See
Arnold, 143 S.W.3d at 786-787. In our view, the post-conviction court erred by summarily
dismissing the petition for post-conviction relief. The petition alleges several colorable
claims that, if taken as true, in the light most favorable to the Petitioner, would entitle him
to relief. For example, in the Petitioner’s claim that counsel failed to request the assistance
of expert witnesses, the Petitioner clearly stated facts in support of this claim and cited to
those portions of the trial record that supported his allegation. He also alleged how such
failure prejudiced him at trial, by hampering counsel’s ability to cross-examine or impeach
the State’s experts and denying him his right to an adversarial proceeding, and again cited
to the record in support of his allegation. This is a colorable claim, and the post-conviction
court erred by summarily dismissing the petition without appointing counsel and allowing
the Petitioner to amend his petition should he so desire with the assistance of counsel.




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        The post-conviction court also erred by finding that several allegations in the petition
had been addressed on direct appeal. As to the allegations regarding counsel’s lack of
preparedness at the suppression hearing, counsel’s failure to object to State’s witness Marvin
Zaccaria being allowed to review his prior testimony from the Petitioner’s trial in
Pennsylvania stemming from the same criminal escapade, and counsel’s failure to object to
the selective prosecution by the State of Tennessee, the post-conviction court determined that
these issues had been raised on direct appeal. No issues of ineffective assistance of trial
counsel were raised on direct appeal. See Shifflett, 2008 WL 1813106. Rather, the
petitioner challenged the admission of his statement and dual prosecutions in both Tennessee
and Pennsylvania on direct appeal. Id. The Petitioner did not challenge the admissibility of
Marvin Zaccaria’s testimony on direct appeal. Id. However, challenges to trial counsel’s
performance surrounding those issues were not addressed on direct appeal and are not now
precluded from being raised in the petition for post-conviction relief. Tenn. Code Ann. § 40-
30-106(h).1

                                               Conclusion

       Based on the foregoing authorities and reasoning, we reverse the post-conviction
court’s order of summary dismissal of the Petitioner’s petition for post-conviction relief. We
remand this case to the post-conviction court for further proceedings.


                                                          _________________________________
                                                          DAVID H. WELLES, SPECIAL JUDGE




        1
           The Petitioner also raises three claims of prosecutorial misconduct. Specifically, he claims that
the prosecution improperly acted in concert with prosecutors in Pennsylvania and Virginia to assure a
conviction, that the prosecution improperly bolstered its closing arguments, and that the prosecution
improperly admitted damaged and incomplete physical evidence at trial. This Court has previously held that
“issues [of prosecutorial misconduct] are more properly the subject of a direct appeal and are not properly
issues for post-conviction relief.” John C. Johnson v. State, No. M2004-02675-CC-R3-CO, 2006 WL
721300, at *19 (Tenn. Crim. App., Nashville, Mar. 22, 2006). In this case, the Petitioner had the opportunity
to present the claims of prosecutorial misconduct on direct appeal. The Petitioner did not do so. Therefore,
the Petitioner has waived any prosecutorial misconduct claims on post-conviction review. The Petitioner
is not entitled to relief on these issues.


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