        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                  Assigned on Briefs March 11, 2014

             CHARLES CALHOUN v. STATE OF TENNESSEE

            Appeal from the Criminal Court for Davidson County
                 No. 2011-D-2974      Seth Norman, Judge



             No. M2013-01942-CCA-R3-PC - Filed June 17, 2014


Petitioner, Charles Deon Calhoun, pled guilty to two counts of aggravated robbery. He then
filed a pro se petition for post-conviction relief, alleging ineffective assistance of counsel.
The post-conviction court summarily dismissed the petition for failing to state a colorable
claim for relief. Petitioner appealed, arguing that the court erred in dismissing his petition
without holding an evidentiary hearing and without appointing counsel to assist in presenting
his claim. Upon review of the record, we affirm the decision of the post-conviction court
dismissing the petition.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS,
and N ORMA M CG EE O GLE, JJ., joined.

Charles Calhoun, Pro Se, Only, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney
General; Victor S. Johnson, District Attorney General; Dan Hamm, Assistant District
Attorney General, for the respondent, State of Tennessee.


                                         OPINION

                                 Factual Background
       On October 17, 2011, the Davidson County Grand Jury indicted Petitioner for two

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counts of aggravated robbery, one count of robbery, and one count of attempted robbery. On
May 3, 2012, Petitioner pled guilty to the two counts of aggravated robbery and agreed to a
sentence of eight years, to be served at 85%.1 The sentence was ordered to run consecutively
to a sentence imposed for a violation of his parole. The other charges were dismissed by the
State. Petitioner filed a timely pro se petition for post-conviction relief on May 6, 2013. As
grounds for relief, Petitioner claimed ineffective assistance of counsel and listed several
allegations against his trial attorney. Specifically, he alleged that his attorney had failed to
challenge the affidavit of complaint prior to the guilty plea hearing, failed to thoroughly
investigate or prepare a defense for trial, failed to properly cross-examine the State’s
witnesses, failed to file a motion to suppress the line-up identification of Petitioner, and that
his attorney’s overall performance was “constitutionally deficient based on the cumulative
effect of errors.” The post-conviction court dismissed the petition without an evidentiary
hearing and without appointing counsel. Petitioner filed this appeal, arguing that the post-
conviction court erred in dismissing his petition. We disagree.

                                               Analysis
         Under the Post-Conviction Procedure Act, a petition for relief “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.” T.C.A. § 40-30-106(d). The post-conviction court shall dismiss a petition if
it fails to state a colorable claim for relief. See T.C.A. § 40-30-106(f). A colorable claim is
defined by Tennessee Supreme Court Rule 28, § 2(h) as “a claim, in a petition for post-
conviction relief, that, if taken as true, in the light most favorable to petitioner, would entitle
petitioner to relief under the Post-Conviction Procedure Act.” The decision of a post-
conviction court to summarily dismiss a petition for post-conviction relief is reviewed de
novo as a question of law. See Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002).

        Grounds for post-conviction relief are limited to situations where the conviction “is
void or voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. Petitioner alleged
in his original post-conviction petition that he received ineffective assistance of counsel. To
support such a claim, the petition would have to contain sufficient factual assertions to satisfy
the two-pronged test established by Strickland v. Washington, 466 U.S. 668 (1984). In other
words, Petitioner “must show first that counsel’s performance was deficient and second that
the deficient performance prejudiced the defense.” Burnett, 92 S.W.3d at 408. In order to
show prejudice with regard to a guilty plea, Petitioner would have to demonstrate that, “but

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        A transcript of the guilty plea hearing is not included in the record. The facts are taken
from the post-conviction court’s order of dismissal.

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for counsel’s errors, he would not have pleaded guilty but would have insisted upon going
to trial.” Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998) (citing Hill v.
Lockhart, 474 U.S. 52, 59 (1985)).

        In his post-conviction petition, Petitioner made several allegations about his attorney’s
overall preparedness for trial. Some of Petitioner’s claims would not establish deficient
performance under the first prong of the Strickland test. For example, Petitioner alleges that
his attorney failed to properly cross examine the State’s witnesses. However, he does not
indicate when this cross examination was to have taken place. We can assume that since
Petitioner pled guilty, there was no trial during which witnesses could have been cross
examined. Additionally, Petitioner’s guilty plea waived his right to confront the witnesses
against him.

         Other claims made by Petitioner could arguably establish that trial counsel’s
performance was deficient under the first prong of the Strickland test; however, there are no
factual allegations in the petition as to how these deficiencies prejudiced the defense under
the second prong. For example, Petitioner alleged that his attorney failed to file a motion to
suppress, but he does not allege how this failure impacted the outcome of his case or his
decision to plead guilty. As noted by the post-conviction court, “Petitioner has not alleged
in the [p]etition that he would not have pleaded guilty if counsel had. . . performed any of the
functions mentioned in the [p]etition.” None of the allegations listed in the petition relate
to trial counsel’s ability to advise Petitioner regarding a guilty plea, nor do they mention any
impact trial counsel’s actions had on Petitioner’s decision to plead guilty. Therefore,
Petitioner has failed to state a colorable claim for ineffective assistance of counsel.

        On appeal, Petitioner argues that it was “implied or should have been implied” in his
petition that he would not have pled guilty if his trial counsel performed any of the functions
listed in the petition. However, the Post-Conviction Procedure Act is clear that a petition
“must contain a clear and specific statement of all grounds upon which relief is sought. . .
Failure to state a factual basis for the grounds alleged shall result in immediate dismissal of
the petition.” T.C.A. § 40-30-106(d) (emphasis added). It is not the job of the post-
conviction court to “read between the lines,” so to speak. While it is generally true that a
petition filed pro se is “held to less stringent standards than formal pleadings drafted by
lawyers,” Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988), it must still contain sufficient
facts to make out a colorable claim for relief. Because Petitioner failed to include sufficient
facts, we see no error on the part of the post-conviction court in summarily dismissing his
petition.

                                        Conclusion
       We find that Petitioner failed to state a colorable claim of ineffective assistance of

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counsel in his petition for post-conviction relief. Therefore, we affirm the decision of the
post-conviction court in summarily dismissing the petition.




                                          ___________________________________
                                          JERRY L. SMITH, JUDGE




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