        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

          HARVEY EUGENE TAYLOR v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 2008-B-1760 Monte Watkins, Judge
                     ___________________________________

              No. M2016-00933-CCA-R3-PC – Filed December 14, 2016
                     ___________________________________


The trial court summarily dismissed the Appellant’s “motion for new trial or evidentiary
hearing on the grounds of ineffective assistance of counsel.” The trial court properly
treated the pleading as a subsequent petition seeking post-conviction relief and denied the
same without a hearing. The trial court’s ruling is hereby affirmed.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed
                 Pursuant to Court of Criminal Appeals Rule 20

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J. and ROBERT L. HOLLOWAY, JR., J., joined.

Richard C. Strong, Nashville, Tennessee, for the appellant, Eugene Taylor.

Herbert H. Slatery III, Attorney General and Reporter, for the appellee, State of
Tennessee.


                             MEMORANDUM OPINION

       The Appellant is appealing the denial of his “motion for new trial or evidentiary
hearing on the grounds of ineffective assistance of counsel.” The record has been filed.
Appointed counsel now moves this Court to withdraw pursuant to Court of Criminal
Appeals Rule 22. Counsel contends this appeal is frivolous under Anders v. California,
386 U.S. 738 (1967). Having reviewed the entire record on appeal, including counsel's
motion to withdraw and the accompanying Anders brief, as well as the Appellant’s pro se
response, the Court agrees that this appeal is frivolous.

       In 2009, the Appellant pleaded guilty to rape and received an agreed-upon twelve
year sentence. The Appellant subsequently sought post-conviction relief claiming that
his guilty plea was not knowing and voluntary because he received ineffective assistance
of counsel. The trial court denied the petition and this Court affirmed that denial on
appeal. Harvey Taylor v. State, No. M2012-01228-CCA-R3-PC, 2013 WL 655699
(Tenn. Crim. App., Feb. 21, 2013), perm. to app. denied, (Tenn., Aug. 14, 2013). The
Appellant’s first attempt to reopen his post-conviction petition failed. Harvey E. Taylor
v. State, No. M2014-01315-CCA-R3-PC (Tenn. Crim. App., July 28, 2014) (Order). The
Appellant was also unsuccessful in his pursuit of error coram nobis relief during which he
alleged the existence of newly discovered exculpatory evidence. Harvey Taylor v. State,
M2014-00541-CCA-R3-ECN, 2015 WL 1242958 (Tenn. Crim. App., Mar. 16, 2015).

      In denying the pro se “motion for new trial or evidentiary hearing,” the trial court
concluded:

              Petitioner continues to allege ineffective assistance of counsel based
       on evidence that was not introduced. Petitioner entered a guilty plea and
       did not proceed to trial. Furthermore, this is also the petitioner’s second
       petition for post-conviction relief in this case. The Court resolved the
       merits of the petitioner’s allegations on the first petition filed in this case
       which was also affirmed by the Criminal Court [sic] of Appeals.

       The Post-Conviction Procedure Act contemplates the filing of only one petition
for post-conviction relief. Tenn. Code Ann. § 40-30-102(c). The statute directs trial
courts to summarily dismiss any subsequent petition when a prior petition was resolved
on its merits. Id. Because the Appellant in this case received a full hearing and appeal on
his original petition, the trial court properly dismissed the recent pleading.

       Although the Act also provides a means for reopening previously filed petitions,
the types of claims which may be raised in a motion to reopen are limited. See Tenn.
Code. Ann. § 40-30-117. Relief will only be granted in a motion to reopen if the claim is
based upon (1) a final ruling of an appellate court establishing a constitutional right not
previously recognized at the time of trial, if retrospective application is required, (2) new
scientific evidence establishing that the petitioner is actually innocent of the crime, or (3)
if the claim seeks relief from a sentence that was enhanced because of a previous
conviction which has subsequently been invalidated. § 40-30-117(a). Furthermore, the
facts underlying the claim, if true, must establish by clear and convincing evidence that
the petitioner is entitled to have his or her conviction set aside or his or her sentence
reduced. Id. None of the claims asserted by the Appellant in his most recent pleading
qualify to reopen his previous petition. Again, as the trial court stated, and confirmed by
counsel on appeal, the Appellant simply wishes to re-litigate his ineffective assistance of
counsel claim.

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        Even if the Appellant was attempting to again reopen his petition by filing the
“motion for new trial or evidentiary hearing,” the Appellant was required to seek
permission to appeal the trial court’s ruling on that pleading. Tenn. Code Ann. § 40-30-
117(c); see also Tenn. Sup. Ct. R. 28, §10(B). The Rules of Appellate Procedure do not
provide for an appeal as of right upon the denial of a motion to reopen. See Tenn. R.
App. P. 3(b). After the trial court summarily dismissed his pleading, the Appellant filed a
notice of appeal. It is unclear from the record why, but the trial court subsequently
appointed counsel to represent the Appellant in the instant appeal. Although our supreme
court has held that a “notice of appeal” may suffice as an application for permission to
appeal under the terms of the statute, the notice must be timely filed in this Court in order
to substantially comply with the statutory filing requirements. See Graham v. State, 90
S.W.3d 687, 691 (Tenn. 2002). The Appellant filed his notice of appeal in the trial court
and a record was subsequently prepared and transmitted on appeal. The filing of the
notice of appeal in the trial court, however, did not effectuate an appeal to this Court. See
id. An appeal from an order denying a motion to reopen must be granted by this Court.
It is not a matter of right. See Fletcher v. State, 951 S.W.2d 378, 382 (Tenn. 1997). Cf.
Tenn. R. App. P. 3(b).

       For these reasons, the order of the trial court denying the Appellant’s “motion for
new trial or evidentiary hearing on the grounds of ineffective assistance of counsel” is
hereby affirmed pursuant to Rule 20. Furthermore, counsel’s motion to withdraw is
hereby granted. As directed by Rule 22(F), the Court hereby notifies the Appellant that
he has the right to file a pro se application for permission to appeal to the Supreme Court
within sixty days. See Tenn. R. App. P. 11. Because the Appellant was declared
indigent, costs are taxed to the State.




                                              ____________________________________
                                             ROBERT W. WEDEMEYER, JUDGE




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