        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT NASHVILLE             FILED
                          JUNE SESSION, 1997           September 30, 1997

                                                        Cecil W. Crowson
                                                       Appellate Court Clerk
ARTHUR L. ARMSTRONG,             )   C.C.A. NO. 01C01-9608-CR-00331
                                 )
     Appellant,                  )
                                 )   DAVIDSON COUNTY
                                 )
V.                               )
                                 )   HON. J. RANDALL WYATT, JR.,
STATE OF TENNESSEE,              )   JUDGE
                                 )
     Appellee.                   )   (POST CONVICTION)



FOR THE APPELLANT:                   FOR THE APPELLEE:

GREGORY D. SMITH                     JOHN KNOX WALKUP
Attorney at Law                      Attorney General & Reporter
One Public Square, Suite 321
Clarksville, TN 37040                SARAH M. BRANCH
                                     Assistant Attorney General
                                     425 Fifth Avenue North
                                     2nd Floor, Cordell Hull Building
                                     Nashville, TN 37243

                                     VICTOR S. JOHNSON, III
                                     District Attorney General

                                     STEVE R. DOZIER
                                     Assistant District Attorney General
                                     W ashington Square, Suite 500
                                     222 Second Avenue South
                                     Nashville, TN 37201


OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION

      The Petitioner, Arthur L. Arm strong, appeals as of right the dism issal of his

petition for post-conviction relief by the Criminal Court of Davidson County,

Tennessee. This is Petitioner’s second petition for post-conviction relief. He

was originally convicted in 1978 for multiple offenses which resulted in Petitioner

receiving consecutive sentences for two (2) life imprisonment sentences, two (2)

sentences of not less than ten (10) nor more than fifteen (15) years, and one (1)

sentence of twenty (20) years. The facts of the case can be found in this court’s

opinion affirming the convictions in Arthur L. Armstrong v. State, No. C-2854,

Davidson County (Tenn. Crim. App., Nashville, February 27, 1980). The first

post-conviction petition was dismissed and this court affirmed. Arthur Armstrong

v. State, No. 01C01-9003-CC-00069, Davidson County (Tenn. Crim. App.,

Nashville, Oct. 25, 1990), perm. to appeal denied (Tenn. 1991).



      Subsequently, Petitioner filed a petition for habeas corpus which was also

dismissed in the trial court which this court affirmed in Arthur L. Armstrong v.

State, No. 01C01-9311-CR-00403, Davidson County (Tenn. Crim. App.,

Nashville, Dec. 8, 1994). In that opinion, our court noted that for the first time on

appeal, the Petitioner raised the issue of a possible violation of the rule set forth

in Brady v. Maryland, 373 U.S. 83 (1963). Specifically involved were allegations

of intentional withholding of exculpatory material by the State during and following

his trial in 1978. Our court affirmed the dismissal of the petition for writ of

habeas corpus and refused to hear the Brady issue. However, our court noted

that Appellant could file a petition for post-conviction relief under the authority of



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Burford v. State, 845 S.W .2d 204 (Tenn. 1992) even though the statute of

limitations would norm ally have expired for post-conviction relief.



       Petitioner then filed a pleading entitled “Amended Petition for Post-

Conviction Relief” asserting that the case had been remanded by our court to the

trial court. Even though Petitioner is mistaken about a remand, an evidentiary

hearing was held. Following the hearing, the trial court entered its findings of fact

and conclusions of law and dismissed the petition. We affirm the judgment of the

trial court.



       The issue regarding Brady material involved two (2) police reports which

Petitioner claimed were exculpatory and were not provided to him by the State.

It is apparent from the record that Petitioner’s two attorneys at the original trial

were both deceased by the time the present petition was heard in the trial court.

However, an attorney in Nashville who formerly was an Assistant District Attorney

in Davidson County and who prosecuted the Petitioner’s case testified at this

most recent hearing. He stated the reports were provided to defense counsel

prior to trial. The trial court specifically accredited the testimony of the former

prosecutor, and found that the police reports were indeed provided to Petitioner’s

attorneys prior to his trial in 1978.



       At the evidentiary hearing, the Petitioner also alleged that his trial counsel

was ineffective for not attacking the credibility of the victim, not appealing the

apparent Brady violation, and not providing the police reports to the Petitioner.

The trial court found that all of these issues were either previously raised in a

prior post-conviction hearing, had no merit because no Brady violation was found,

                                         -3-
or failed to show prejudice to Petitioner by any alleged ineffective acts of his trial

counsel.

      The factual findings of the trial court in a post-conviction hearing “are

conclusive on appeal unless the evidence preponderates against the judgment.”

State v. Buford, 666 S.W .2d 473, 475 (Tenn. Crim. App. 1983). Also, in a post-

conviction relief proceeding, the Petitioner has the burden of proving the

allegations in his petition by a preponderance of the evidence. McBee v. State,

655 S.W .2d 191, 195 (Tenn. Crim. App. 1983).



      Based upon a thorough review of the record and the arguments of counsel

in the briefs, we find that the evidence does not preponderate against the findings

of the trial court. Consequently, the judgment of the trial court is affirmed.



                                  ____________________________________
                                  THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
JOSEPH B. JONES, Presiding Judge


___________________________________
W ILLIAM M. BARKER, Judge




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